Afgri Grain Marketing (Pty) Ltd v Trustees for the time being of Copenship Bulkers A/S (in liquidation) and Others

Copenship and Afgri concluded a GENCON charter party in 2008 for the carriage of bulk maize to Mombasa. During the November voyage on the MV Fonarun Naree, an explosion occurred after fumigation, allegedly damaging the cargo. Although a clean bill of lading was issued, part of the cargo was later rejected in Mombasa, leading to Kenyan admiralty proceedings that were eventually settled. Parallel London arbitrations followed: one between the vessel owner and Copenship, and another between Copenship and Afgri for indemnification. In 2018 Copenship, ex parte, obtained a security arrest under s 5(3)(a) of the Admiralty Jurisdiction Regulation Act over funds in Afgri’s Absa bank accounts, including future deposits. Afgri applied for reconsideration under Uniform Rule 6(12)(c), disputing Copenship’s alleged need for security and the scope of the arrest.

The appeal was upheld with costs, including costs of two counsel. The High Court order was set aside and replaced with an order granting reconsideration, setting aside the original arrest order, and directing Copenship to pay the costs of the s 5(3) application, the reconsideration, and related interlocutory proceedings.

The case clarifies the limits of security arrests under s 5(3)(a) of the Admiralty Jurisdiction Regulation Act, confirming that only property existing at the time of arrest may be attached. It also provides authoritative guidance on the procedure and evidentiary burden in reconsideration of ex parte admiralty arrest orders, and reinforces the stringent requirement of proving a genuine and reasonable need for security.