Cargo Laden and Latterly Laden on Board the M.V. Thalassini Avgi v. M.V. Dimitris 1 is an important judgment of the South African Appellate Division, concerning primarily what have come to be known as “security arrests”, but which also deals with the South African court’s approach to jurisdiction clauses, the admissibility of hearsay evidence and the burden of proof in applications to set arrests aside.

The admiralty jurisdiction of the South African Supreme Court includes a discretionary power to order the arrest of a ship or other propertv, not as is usually the case merely to serve as security and to confer jurisdiction for the purposes of proceedings in South Africa, but simply to enable the applicant for arrest to obtain security for proceedings—actual or contemplated—either in South Africa or (as is more likely) anywhere else in the world. This discretionary power is conferred by s. 5(3) of the Admiralty Jurisdiction Regulation Act, No. 105 of 1983 (“the Act”).2 The question of security arrests was subjected to judicial scrutiny shortly after the Act came into force. In Katagum Wholesale Commodities Co. Ltd. v. The M.V.Paz,3 Didcott, J., deemed it necessary to refer an application for a security arrest which had been brought before him to a full bench of three judges, in view of reservations which he had concerning the time of South African courts being taken up with matters entirely unconnected with South Africa. He questioned whether the court should allow itself to be “transformed into some sort of judicial Liberia or Panama” and “turned into a Court of convenience for the wandering litigants of the world”. The majority of the full bench (Didcott, J., silente) held that the court should not be averse to exercising its powers to grant security arrests and should indeed be disposed to do so unless satisfied on the facts of the particular case that it ought not to do so.4 It however held that an applicant must: