HOW EFFECTIVE ARE PROTECTIVE WRITS?
Given the ease with which ships can be arrested in South Africa as security for legal proceedings, commenced either locally or in foreign forums, the question frequently arises as to whether it is possible to issue arrest proceedings in South Africa as a protective step to guard against a change of ownership or a possible time bar of the claim.
In principle, a claimant can obtain a writ of summons in rem from the High Court of South Africa before the property is located within the jurisdiction of the court. This is subject to the proviso that the property "is likely to come into the Republic after the making of the order". It follows that the issuance of blanket protective writs may expose the claimant to a challenge if, at the time that the arrest order was made, there was little likelihood of the vessel coming within the jurisdiction. While there is no direct authority on the point, the passage of time between the order for arrest being granted and the vessel coming into the jurisdiction should be a factor that the court takes into account when considering a challenge of the arrest.
A further consideration for a claimant is that no summons or warrant may be served if more than one year has passed since the date it was issued, other than with the leave of the court. A more pertinent issue in the context of protective writs arises when the claim is founded on a contract (eg, a charterparty or bill of lading) that contains a foreign dispute resolution clause and the application of foreign law. The nub of the difficulty for claimants is that a protective writ in rem contemplates substantive proceedings on the merits in South Africa, which would stand in direct conflict with the dispute resolution terms agreed on by the parties in the contract.
Furthermore, the claimant may not want to litigate in South Africa; and even if it does, the arrest is open to challenge by the owner on the grounds that the court should decline to hear the matter. The South African court, exercising its admiralty jurisdiction, has the discretion to decline jurisdiction if it is satisfied that another court will exercise jurisdiction in respect of the proceedings and if it is more appropriate that another court/arbitrator or tribunal/body adjudicate the proceedings.Read further