Atakas Ticaret Ve Nakliyat AS v Glencore International AG

Atakas, a Turkish company, purchased coal from Glencore on 18 December 2012. The consignment was to be transported from Richards Bay, South Africa, to Turkey aboard the MV 'Cecilia B', which Atakas had chartered. On 30 October 2013, shortly after loading was completed, an explosion occurred in the vessel's cargo hold. Investigations suggested that heated coal had been loaded, which subsequently ignited after the hold was closed. The voyage was abandoned and the cargo had to be unloaded. On 26 June 2014, Atakas instituted a delictual action in personam against Richards Bay Coal Terminal (Pty) Ltd (RBCT), the terminal operator, in the High Court's admiralty jurisdiction under the Admiralty Jurisdiction Regulation Act 105 of 1983 (AJRA). RBCT raised a special plea denying delictual liability and contending Atakas had contractual remedies against the seller. The vessel's owners were joined as the second defendant on 23 February 2016. Given RBCT's special plea, Atakas applied to join Glencore as the third defendant under s 5(1) of the AJRA.

• Whether the International Arbitration Act 15 of 2017 (IAA) impliedly repealed or restricted the court's discretion under s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983 (AJRA) to permit joinder of parties
• Whether the existence of an arbitration clause in the sale contract between Atakas and Glencore precluded the court from exercising its discretion to join Glencore as a party to admiralty proceedings
• Whether the IAA, read with article 8 of the UNCITRAL Model Law, required the court to stay proceedings and refer the matter to arbitration
• Whether article 1(5) of the UNCITRAL Model Law preserved the court's discretion under the AJRA
• Whether it was appropriate to exercise the discretion to join Glencore as the third defendant in the circumstances

The appeal was upheld with costs, including those occasioned by two counsel. The order of the court below was set aside and substituted with the following: (a) Glencore International AG was joined as the third defendant in the action in terms of s 5(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983; (b) Atakas Ticaret Ve Nakliyat AS was granted leave to supplement its particulars of claim in order to plead its cause of action against Glencore; (c) Glencore was ordered to pay the costs occasioned by the opposition to the application, including costs consequent upon the employment of two counsel.

The binding legal principles established are: (1) The International Arbitration Act 15 of 2017 does not impliedly repeal or restrict the discretion conferred on courts by sections 5(1) and 7(1) of the Admiralty Jurisdiction Regulation Act 105 of 1983. (2) Article 1(5) of the UNCITRAL Model Law on International Commercial Arbitration, incorporated as Schedule 1 to the IAA, expressly preserves the operation of other South African laws, including the AJRA, which provide that certain disputes may be submitted to arbitration only according to provisions other than those of the Model Law. (3) The phrase 'any other law' in article 1(5) plainly encompasses the AJRA. (4) The existence of an arbitration agreement between parties is a factor to be considered in the court's discretionary assessment under s 5(1) and s 7(1) of the AJRA, but does not eliminate or override that discretion. (5) The AJRA is a special Act which governs all admiralty matters and confers wide-ranging jurisdiction and powers upon South African admiralty courts, including the power to permit joinder under s 5(1) notwithstanding that a person is not otherwise amenable to the jurisdiction of the court. (6) The principle of statutory interpretation that repeal by implication is disfavoured and should only be adopted when inevitable applies; any reasonable construction that avoids implied repeal is more likely to accord with legislative intent.

The court made several observations of broader significance: (1) It noted that the vast majority of admiralty disputes are subject to agreements that can be classified as international arbitration agreements (almost every charterparty, contract of carriage, construction and repair contract, and provision of supplies contract includes such a provision). (2) The court observed that if Glencore's interpretation were accepted, it would have 'extraordinarily far-reaching' effects, essentially putting 'a red line through' key provisions of the AJRA. (3) The court commented on the purpose of s 5(1) of the AJRA, citing Scott JA in MY 'Summit One', that 'the object of the Legislature was clearly to permit all the parties to a dispute to be joined in an action' and that the absence of such provision 'could well result in an undesirable situation of courts in different countries having to adjudicate on the same or substantially the same issues arising out of the same incident or set of facts.' (4) The court noted that the extension of admiralty jurisdiction under s 5(1) 'was, from a practical point of view, clearly necessary in the interests of convenience and in order to prevent multiple proceedings.' (5) The court observed that the IAA had not been mentioned in the papers below because it only came into operation on 20 December 2017, after both answering and replying affidavits had been filed, and was only raised for the first time in heads of argument shortly before the matter was argued in the court a quo.

This case is significant in South African admiralty and arbitration law for clarifying the relationship between the International Arbitration Act 15 of 2017 and the Admiralty Jurisdiction Regulation Act 105 of 1983. It establishes that the IAA does not impliedly repeal or restrict the court's discretion to permit joinder under s 5(1) of the AJRA, and that article 1(5) of the UNCITRAL Model Law expressly preserves the operation of other South African laws, including the AJRA. The judgment confirms that the existence of an arbitration agreement is a factor to be considered in the exercise of the court's discretion under s 5(1) and s 7(1) of the AJRA, but does not automatically preclude joinder. The case reaffirms the far-reaching nature of joinder powers under s 5(1) and their importance in preventing multiple proceedings and ensuring all parties to a maritime dispute can be joined in a single action. It also demonstrates the application of the principle that implied repeal of earlier legislation by later legislation is disfavoured and should only be found where inevitable, and that statutes should be read harmoniously where possible.