Where do we belong? The plight of plaintiffs with small maritime claims

• Author: Wallis, M.
• DOI: https://doi.org/10.47348/SALJ/v139/i1a7
• Published date: 23 February 2022
• Date: 23 February 2022
• Pages: 205-231

205

https ://doi.org /10.4734 8/SALJ /v139/i1a7

WHER E DO WE BELONG? THE PLIGHT OF

PLAINTIFFS WITH SMALL MARITIME CLAIMS

MALCOLM WALLIS

Judge of the Supreme Cou rt of Appeal†

Is a claim falling w ithin the deniti on of a ‘maritime c laim’ in terms of s 1 of t he

Admiralty Jurisdic tion Regulation A ct 105 of 1983 and also within s 29(1) of the

Magistrates’ Cour ts Act 32 of 1944 capable of bei ng pursued in the magi strates’

courts? In World Net Logi stics (P ty) Ltd v Dons antel 133 CC & another

2020 (3) SA 542 (KZP) the full cour t in KwaZulu-Nata l held that such cla ims

must be pursued with in the exclusive admi ralty jurisdictio n of the high court. T he

article submit s that this is inc orrect and dis regards the histor y of the Admiralty

Jurisdictio n Regulation Act, a mounts pro tanto t o an implied repeal o f the relevant

section of the Magi strates’ Courts A ct, and is incon sistent with the p rinciple s of

statutory inte rpretation applied by our cour ts. It urges the Maritime Law A ssociation

urgently to seek an opp ortunity to cha llenge the decis ion, which is preju dicial to

claimants w ith small claims ar ising out of ship-related contract s or delicts.

Jurisd iction – maritime cl aims – magist rates’ cour ts

I IN TRODUC TION

Recently, a curious dierence of approach bet ween dierent d ivisions of

the high cour t manifested itsel f in relation to cl aims f alling with in the

jurisdiction of the mag istrates’ courts. Two divisions held t hat litig ants

bringing such clai ms in the high court shou ld not do so, or at least not

without the hig h court’s leave that had been sought and obta ined in

separate proceedings. (The issue arose in relation pr imar ily to n ancial

institutions, but the orders were entirely gener al and applied to all such

claims , however arising.) Not for the rst time,1 judicial irr itation with

the additiona l workload imposed by such claims being pur sued in the

high cour t, combined with concern that defend ants to such claims may be

prejudiced, led to th is result. The judgments went f urther a nd held that

if, nonetheless, such a case was brought before the high cou rt, the cour t

could mero motu tr ansfer it to the magistrates’ courts.2

† B Com LL B (Nata l) PhD (U KZN). SC; Judg e of the Supreme Cour t of

Appeal; Honor ary Pro fessor of Law in t he Universit y of KwaZulu-Nat al. I am

gratef ul to my colle ague Just ice Owen Rogers, D r Dusty Don nelly, the act ing

head of the Inst itute of Ma ritime S tudies at U KZN, and Pau l Wallis S C for

their helpfu l comments on earlier d rafts of this a rticle. Its deciencie s are entirely

my own.

1 S tandard Bank of S outh Africa L td v Shiba; Standa rd Bank of South Afr ica Ltd

v Van den Berg 1984 (1) SA 153 (W) at 156G–157A, overru led in Standa rd Credit

Corporation Lt d v Bester & other s 1987 (1) SA 812 (W).

2 Nedbank Ltd v Th obejane, and Simil ar Matters 2019 (1) SA 594 (GP); Firstrand

Bank Ltd & other s v Mostert & others 2 020 (6) SA 543 (ML). The basis upon which

this was d one in the face of t he express prov isions con ferrin g jurisd iction on the

(2022) 139 SALJ 205

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206 (2022) 139 THE SOU TH AFRICAN L AW JOUR NAL

https ://doi.org /10.4734 8/SALJ /v139/i1a7

In the important, if sl ightly arcane, area of maritime claims a dierent

approach emerged in a d ierent court. Litigants with relat ively smal l

claims a rising from their de alings with those who go down to the sea

in ships3 have hitherto been content to pursue those cl aims in the local

magistrates’ courts having jurisdiction. Usual ly, such litigants are local, as

are the defenda nts, because it is not open to them to bri ng proceedings by

way of the arres t of a ship or other property in an a ction in rem. They have

now had a rude awakening. In contra st to the litigants with smal l claim s

being told that t he doors of the hig h court were closed to them, the fu ll

court in the KwaZulu-Natal Div ision4 went in the opposite d irection, by

upholding an object ion to the juri sdiction of a ma gistr ates’ courts where

the claim wa s one fall ing within the denition of a mar itime claim in

s1 of the Ad mira lty Jur isdiction Regulation Act 105 of 1983 (‘AJRA’).

It ruled tha t where the claim was a mar itime claim, the ma gistrates’ courts

had no choice but to uphold the objection and d ismiss the action.

The judgment conta ins a potential loophole, because it held that, if

such claims are instituted in the ma gistr ates’ courts and their being a

maritime claim is not raised, it will proceed as normal. But it wil l be a

brave (or foolhardy) lega l practitioner who advises a cl ient to proceed in

the magistrates’ cour ts knowi ng that, if t he point is rai sed, the action will

be dismi ssed. Eect ively, the outcome is that, apar t from inadvertence

high cour t and bind ing author ity that t here is no such power, was deb atable.

By and large t he cases were low-va lue claim s of the ‘debt col lection’ var iety.

The majorit y in Nedbank L td v Gqirana & anothe r, and Similar Matte rs 2019 (6)

SA 139 (ECG) disa greed th at there was a power to m ake those ord ers, but

held to everyone’s sur prise and w ithout rai sing the poin t, or heari ng argu ment

on it, that on a proper i nterpret ation of the Nat ional Cred it Act 34 of 2005

all mat ters ar ising t hereunder must b e pursued befor e the magi strate s’ courts.

After th is art icle was r st prepared bo th Thobejane and Gqirana were overruled

by the SCA (The Sta ndard Bank of SA L td & others v Tho bejane & others a nd

The Standa rd Bank of SA Ltd v Gqirana NO & anot her [2021] ZASCA 92 (‘Thobejane

(SCA)’). No doubt the case wi ll now wend its wea ry way to Br aamfont ein and

the Constit utional Court.

3 T he express ion is dened in s 1 o f the Admi ralty Ju risd iction Regu lation

Act 105 of 1983 to include ‘any vess el used or capable of b eing used on t he sea

or inla nd waters, a nd includes any hoverc raft, power b oat, yacht, sh ing boat,

submar ine vessel, ba rge, cran e barge, oat ing cra ne, oating d ock, oil or other

oating r ig, oating moori ng installat ion or similar oat ing install ation, whether

self-propel led or not’. The denit ion is so wide th at it is capable of i ncluding

canoes, row ing boats and paddle sk is.

4 World Net Logistic s (Pty) Ltd v Donsa ntel 133 CC & another 2020 (3) SA 542

(KZP) (‘World Net’). I record that coun sel for the unsu ccessfu l appella nt was my

son, but we had never di scussed t he case and I wa s unaware of it u ntil it ca me

to my attention t hrough D r Dusty Don nelly, the acti ng head of the Ma riti me

Studies Un it at UKZN.

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