National Council of Societies for the Prevention of Cruelty to Animals v Al Mawashi (Pty) Ltd (995/2020) [2021] ZAECGHC 54 (30 March 2021)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

Case No. 995/2020

Date heard: 12 March 2021

Date delivered: 30 March 2021

In the matter between:

NATIONAL COUNCIL OF SOCIETIES FOR THE PREVENTION

OF CRUELTY TO ANIMALS APPLICANT

and

AL MAWASHI (PTY) LTD FIRST RESPONDENT

LIVESTOCK TRANSPORT AND TRADING COMPANY

PSC (KL TT) SECOND RESPONDENT

JOHN PAGE N.O.

(as a Trustee of the Page Farming Trust) THIRD RESPONDENT

BRUCE PAGE N.O.

(as a Trustee of the Page Farming Trust) FOURTH RESPONDENT

GLEN PAGE N.O.

(as a Trustee of the Page Farming Trust) FIFTH RESPONDENT

GARY KLINKKRADT N.O.

(as a Trustee of the Page Farming Trust) SIXTH RESPONDENT

DEPARTMENT OF AGRICULTURE, LAND REFORM

AND RURAL DEVELOPMENT SEVENTH RESPONDENT

THE MINISTER OF AGRICULTURE,

LAND REFORM AND RURAL DEVELOPMENT EIGHTH RESPONDENT

DEPARTMENT OF RURAL DEVELOPMENT AND

AGRARIAN REFORM:

VETERINARY SERVICES (EASTERN CAPE) NINTH RESPONDENT

MEC FOR RURAL DEVELOPMENT

AND AGRARIAN REFORM

TENTH RESPONDENT

RED MEAT INDUSTRY FORUM ELEVENTH RESPONDENT

JUDGMENT

ROBERSON J:

[1] This is an application for leave to appeal a costs order made by Dukada AJ on 5 November 2020. The application for leave to appeal was delivered on 17 November 2020. It was allocated to me for hearing on 12 March 2021, Dukada AJ not being readily available as envisaged in s 17 (2) of the Superior Courts Act 10 of 2013.

[2] Dukada AJ’s order followed an application by the applicant (the NSPCA) brought ex parte and as a matter of urgency, in which it sought a rule nisi calling upon the second respondent (LTTC), a peregrinus company listed in Kuwait, to show cause on the return day why the following order should not be made:

1. Directing the sheriff to attach the ship, the AL Messilah, currently docked at the East London harbour, and to keep it under attachment in the East London harbour, pending LTTC satisfying in full, the two costs orders granted in favour of the applicant, the National Council of Societies for the Prevention of Cruelty to Animals (“the NSPCA”), by this court per Justice Jaji on 9 June 2020 and Justice Bloem on 25 June 2020, or putting up adequate security to meet these costs, the amount of security being fixed at R850 000.00.

2. The costs of this application are to be paid by LTTC, such costs to include those occasioned consequent upon the employment of two counsel.

3. Pending the return day, LTTC is interdicted from removing the Al Messilah from the East London harbour, where it is to remain berthed until the NSPCA’s costs have been paid in full or putting up adequate security to meet these costs, the amount of security being fixed at R850 000.

[3] This order was granted by Beshe J on 3 July 2020. LTTC opposed the application. When the matter was argued on the extended return day, LTTC had provided security and the Al Messilah had left the harbour. The issue before Dukada AJ was the costs of the ex parte application.

[4] The costs orders referred to were granted in previous applications. The late Jaji J’s order was made against the first respondent (Al Mawashi), a subsidiary of LTCC. The business of Al Mawashi and LTCC (jointly referred to as the companies) is the export of livestock from South Africa to the Middle East, on ships owned by LTCC. The applicant maintains that there is a joint venture between the companies, hence Jaji’s costs order pertains to LTTC as well. This is disputed by LTTC. For the purposes of this judgment there is no need to consider that dispute. The costs order made by Bloem J was against the companies.

[5] Jaji J granted an order against the first to sixth respondents interdicting them, and I paraphrase, from transporting sheep to any port or harbour in South Africa for the purpose of transporting them by sea on a vessel from any port in South Africa to any destination in the Middle East or a destination which crosses the Equator. This order was made pending the determination of a further hearing in which the NSPCA seeks final relief pertaining to the transportation of sheep by sea which involves crossing the Equator.

[6] The companies applied before Bloem J for a discharge of Jaji J’s order alternatively that it be varied to allow the transportation of no more than 56 000 sheep (as opposed to 70 000 initially intended to export). On 30 June 2020 (not 25 June 2020 as stated in the notice of motion) Bloem J dismissed the application and ordered the companies to pay the costs, including the costs of a postponement on 19 June 2020.

[7] In the course of his judgment Bloem J referred to letters written by the NSPCA from April 2020 to the attorneys for the companies in an attempt to find out when the next ship would be arriving in South Africa. Bloem J found that the companies must have known much earlier than 5 or 6 June 2020 that the next ship would arrive on 9 June 2020, and that they should have informed the NSPCA much earlier than they did of the date of the arrival. Had they done so, according to Bloem J, the urgent application on 9 June 2020 could have been avoided. They only informed the NSPCA of the ship’s arrival on the evening of 8 June 2020.

[8] The above is by way of background. In the founding affidavit in the current matter Mr Dean Wright, the NSPCA’s attorney, set out the history of the litigation to date, including the numerous requests made by the NSPCA to the companies’ attorneys regarding the arrival of the next ship so that an application could be brought timeously. (A previous application for an interdict similar to that granted by Jaji J had been dismissed partly because the NSPCA had created its own urgency.) Wright stated that the Al Messilah had arrived undetected and by stealth on 9 June 2020, with its navigation system not turned on.

[9] Wright said that because LTCC was a peregrinus with no assets in South Africa other than the Al Messilah, and because Al Mawashi was impecunious, the NSPCA feared that it would not recover its costs. Wright referred to correspondence in early July 2020 between his firm and the companies’ attorneys, requesting that the companies pay R850 000 into their attorneys’ trust account to cover the costs orders, and putting them on terms for such payment failing which an application would be brought to attach the Al Messilah. A request for an inspection of the Al Messilah was also made. In response the companies’ attorneys referred only to the request for an inspection and also mentioned that the harbour’s operations were due to be reinstated on 3 July 2020. The NSPCA’s attorneys then asked when the Al Messilah was going to leave the harbour. The companies’ attorneys replied by saying that it was not possible to provide a date of departure. They also suggested a set off of costs orders and advised that Al Mawashi had assets to provide security for payment of the NSPCA’s costs orders. They indicated that an application to have assets seized would be opposed. In response the NSPCA’s attorneys put LTCC on terms for payment of R850 000 into the companies’ attorneys’ trust account.

[10] Wright referred to past conduct of the LTCC in relation to the main application (part A for the interdict and part B for final relief), for which directions had been given by Bloem J to be heard on 16 July 2020. Despite the pending application the Al Messilah had docked on 9 June 2020 and had it not been for the interdict granted by Jaji J, the sheep would have been loaded and the ship would have departed. I mention the following statement of Wright in the founding affidavit:

“In light of the above the NSPCA has grave concerns that LTTC is avoiding the request for security for costs and will remove its only asset from South African waters in an attempt to evade its financial obligations to the NSPCA. There is no trust at all.”

[11] Wright stated that the NSPCA sought an order “arresting and attaching the Al Messilah to satisfy the costs orders already awarded”. With regard to jurisdiction he said that this court had authority to grant such an order in terms of its inherent jurisdiction as well as under its admiralty powers and jurisdiction.

[12] The answering affidavit was deposed to by Mr Henry van Breda, of the companies’ attorneys. He pointed out that if the NSPCA was relying on this court’s admiralty jurisdiction, the main application had not been brought before the Admiralty Court and no reliance was placed on the existence of a maritime claim. He stated that there was no common law right to seek security from a peregrinus respondent where such respondent had submitted to the jurisdiction of the court, as LTCC had done. He also referred to the Uniform Rule relating to the procedure to be followed for security for costs (Rule 47). Van Breda said that the payment by LTCC into his firm’s trust account was done in order to obtain the release of the Al Messilah.

[13] With regard to the allegation of stealth on the part of the LTCC van Breda said that there was no duty to disclose the dates of arrival of a ship in East London. In addition there is the procedure to be followed via the port authorities for permission to berth, and the requirement to provide the necessary documentation. Van Breda also said that the loading of livestock does not take a short time. Overall he said that a vessel’s arrival and departure from a port is not a fleeting event.

[14] In the replying affidavit Wright said that the right relied upon by the NSPCA was not located in admiralty jurisdiction legislation nor was Uniform Rule 47 relied upon. He referred to the founding affidavit and said that the NSPCA had a reasonable fear that the LTTC would remove the Al Messilah from South Africa in an attempt to avoid paying the debt. He referred to the relief claimed as a classic anti-dissipation interdict where a debtor may run away or hide assets in order to avoid paying a debt which is owed.

[15] In his judgment Dukada AJ found that he could not exercise the court’s admiralty jurisdiction because there was no maritime claim pleaded by the NSPCA. He further found that the NSPCA had not followed the procedure prescribed in Uniform Rule 47. With regard to the NSPCA’s contention that the application was for an anti-dissipation interdict he referred to the requirements for such an interdict as set out in Knox D’Arcy Ltd and Others v Jamieson and Others [1996] ZASCA 58; 1996 (4) SA 348 (A). He said that these requirements had no relevance to the application because the NSPCA’s case was based on the court’s inherent or admiralty powers and the NSPCA had not relied on the decision in Knox D’Arcy in its founding affidavit, and had also failed in its founding affidavit to prove the requirements as set out in Knox D’Arcy. He concluded by saying that the NSPCA had failed to prove the requirements of the Admiralty Jurisdiction Regulation Act 105 of 1983 (the AJRA) and of Uniform Rule 47 and consequently ordered the NSPCA to pay the costs of the application, including the costs of two counsel. LTCC accepts the costs of two counsel was incorrect as only one counsel was involved when the matter was argued.

[16] With regard to the requirements for an anti-dissipation interdict, Harms ADP stated the following in Carmel Trading Company Limited v Commissioner for the South African Revenue Service and Others [2008] 2 All SA 125 (SCA) at paragraph [3]:

“Such an order, which interdicts a respondent from disposing of or dissipating assets, is granted in respect of a respondent’s property to which the applicant can lay no special claim. To obtain the order the applicant has to satisfy the court that the respondent is wasting or secreting assets with the intention of defeating the claims of creditors. Importantly, the order does not create a preference for the applicant to the property interdicted.”

[17] It was submitted on behalf of LTCC that the NSPCA had made out its case in reply and that the terminology used in the notice of motion and the founding affidavit indicated a claim for security in terms of the AJRA. On behalf of the NSPCA it was submitted that its founding affidavit established a cause of action based on the common law anti-dissipation interdict. In my view, there is a reasonable prospect that another court would pay less regard to the terminology used by the NSPCA and have regard to the substance rather than some of the wording of the notice of motion and the contents of founding affidavit. In particular I refer to the prayer in the notice of motion that the Al Messilah be kept under attachment pending satisfaction of the costs orders and Wright’s statement in the founding affidavit that the application was to attach the ship in order to satisfy a debt.

[18] It was further submitted on behalf of LTCC that even if it was accepted that the application was for an anti-dissipation interdict, the requirements had not been met. I am further of the view that there is a reasonable prospect that another court would consider that the contents of the founding affidavit established the requirements for an anti-dissipation interdict. I refer to what was quoted in paragraph [10] above, the reference to the prior conduct of the LTCC in only disclosing at the last moment that the ship had arrived on 8 June 2020, and the lack of a direct response by LTCC to the NSPCA’s enquiries concerning when the Al Messilah was going to leave East London, which led to the ex parte application.

[19] In my view there is a reasonable prospect that another court would not regard the contents of the answering affidavit as amounting to a defence to the allegations contained in the founding affidavit. The response to the allegation of stealth was in general terms and there was no direct answer to the allegation that the navigation system of the Al Messilah had not been turned on when it arrived in East London on 8 June 2020.

[20] I am aware that an award of costs involves a discretion which can only be interfered with if such discretion has not been judicially exercised. However where costs only remain in issue, as in this case, a court has regard to the merits of the parties’ cases. Dukada AJ, in awarding costs to LTCC, considered the merits of the application in order to make such award. If it is found on appeal that a court has erred in regard to the merits, its costs order may be set aside and substituted.

[21] The NSPCA initially sought leave to appeal to a Full Court of this Division but at the hearing it was requested that leave be granted to the Supreme Court of Appeal on the ground that, as provided for in s 17 (1) (a) (ii) of the Superior Courts Act, there is a compelling reason why the appeal should be heard. It was submitted that the requirement for an anti-dissipation interdict that there be an intention to defeat a creditor’s claim was restricted to a contingent claim. Where there was already a vested debt, so it was submitted, this requirement was not necessary. I do not read such a distinction in for example Knox D’Arcy or Carmel Trading, nor am I of the view that the judgments referred to by the NSPCA in support of its argument reveal expressly such a distinction. In any event in this matter it was submitted on behalf of the NSPCA that it had satisfied the requirement that there be an intention to defeat the claim.

[22] The following order will issue:

[22.1] The application for leave to appeal is granted.

[22.2] Leave is granted to the Full Court of this Division.

[22.3] The costs of the application will be costs in the appeal.

_____________________

J M ROBERSON

JUDGE OF THE HIGH COURT

Appearances

Applicant: Adv K Hopkins with Adv A Ashton, instructed by Neville Borman & Botha, Makhanda.

Second respondent: Adv G Brown, instructed by Netteltons, Makhanda.