PE court declares arrest of ship with Saharan phosphate cargo valid

20 Jun 2017

The cargo on board a ship arrested in the Port Elizabeth harbour will remain in South Africa pending further legal action to determine its rightful ownership.

PE court declares arrest of ship with Saharan phosphate cargo valid

A full bench of the Port Elizabeth High Court found that the detention of the NM Cherry Blossom, carrying 50,000 tons of phosphate worth R80-million, was correct and lawful.

The Cherry Blossom was en route to New Zealand when it was arrested in Algoa Bay on 1 May, following claims that the sale of the cargo was in fact unlawful.

The phosphate it was carrying had allegedly been removed illegally from the disputed territory of Western Sahara.

Last week's ruling is Western Sahara's first step in claiming back the cargo.

The Saharawi Arab Democratic Republic (SADR) brought the application to the high court last month, claiming to be the lawful owner of the phosphate and wanting - by way of an interdict - to stop the ship from proceeding to a potential buyer in New Zealand.

It wanted the shipment returned to the Saharawi people.

The SADR and the Polisario Front claimed the phosphate was part of the resources of Western Sahara and belonged to its people.

They wanted the cargo to be under the jurisdiction of the court until the final determination of their right of ownership.

Acting Deputy Judge-President Selby Mbenenge, with judges Clive Plasket and Glenn Goosen agreeing, said last week that if the NM Cherry Blossom sailed from Algoa Bay it would spell the end of the proposed vindicatory action.

While the SADR contended that Phosboucraa at the Bou Craa mine in Western Sahara did not have title to sell the cargo and that the sale was therefore invalid, lawyers on the opposing end maintained that this was a political matter that should not be decided by a foreign court.

The Port Elizabeth court did not agree.

"In these circumstances the balance of convenience favours the SADR and Polisario Front," Mbenenge said.

The court ordered that the owner of the NM Cherry Blossom and the buyer of the phosphate be interdicted and restrained from taking the cargo from the jurisdiction of Algoa Bay pending the determination of its rightful ownership.

The sheriff of the high court was furthermore ordered to remove the ship's registration documents and trading certificates.

"In the event that [the SADR] obtains a final order for the delivery and possession of the cargo, the guarantor shall pay to them the market value of the cargo in Port Elizabeth as of the date of this order," the court ruled.

"Leave is hereby given to [the SADR and Polisario Front] to sue the respondents for delivery of the cargo."

Source: Herald

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