Ports, Transport and Logistics

‘The department is also well equipped to handle port infrastructure mandates, including ports development. The team has an active practice representing underwriters and cruise line operators, with notable strength outside of South Africa, including in Namibia.’ – Chambers and Partners, 2021

  • Overview
  • Significant Matters

Overview

Millions of tons of import and export cargoes move along the logistics corridors of Africa every day, using road, rail and pipelines for carriage from the hinterland to ports, and vice versa, liquid and dry cargo storage facilities and shipment or discharge through the terminals which populate those ports.

We have extensive expertise and experience in the ports, transport and logistics corridors sector across numerous countries on the African continent and deliver a comprehensive service facilitating relationships between land and sea users and owners of ports, terminals and equipment. We have advised on well over 100 related infrastructure projects, many of which have ports, transport and logistics corridors facets to them.

Our offering includes advising on port and terminal regulations and legislation, terminal throughput agreements, ISPS, port economic regulation, terminal operating procedures (including rail and stockyard interfaces and management processes), storage contracts, establishment of all infrastructure pertaining to ports, terminals, storage facilities, inland terminals and logistics corridors such as rail and pipelines. Our expertise integrates all of the contractual and regulatory aspects of ports, terminals and logistics corridors with the physical establishment and financing of the infrastructure.

In this context, we also advise our clients on establishing logistics infrastructure, relationships between land and sea users, building contracts from source to sea and equipment and other procurement contracts, as well as project finance and public-private partnerships.

Our service extends to undertaking risk management assessments as well as all litigation between parties to port or terminal operations.

We serve all of the ports in South Africa, including Cape Town, Durban, Ngqura/ Coega, Port Elizabeth, Richards Bay and Saldanha and numerous ports in Southern Africa including all Mozambique, Tanzanian and Kenyan ports as well as Namibia, Angola, Madagascar and Mauritius. We are also the listed legal correspondent in the ports of Cape Town and Port Elizabeth for most of the International Group of P&I Clubs.

We have worked on a number of major projects, including the new Durban cruise terminal as well as full rail, terminal and port developments in a number of countries in Africa including Mozambique, Tanzania, Ghana and Namibia.

Our clients include various government departments, international logistics infrastructure developers and operators, shipping lines, national port authorities, financiers and insurers.

‘The service provided is fantastic. The lawyers are cool under pressure, and their reporting and updating and general conduct throughout is second to none.’ – Chambers and Partners, 2021

‘Sources are quick to commend the group for its “accurate, responsive and results-oriented” approach and “in-depth market knowledge as a specialist legal adviser in South Africa.” They continue: “The lawyers are very knowledgeable and very experienced, as well as being very prompt in their services.”‘ –  Chambers and Partners, 2019

‘It was quite unique to find a team capable of handling all aspects of a ports matter. They provide complete expertise in this field.’

‘The team is lauded for its superior technical expertise and diverse practice. Clients are quick to highlight its strength in arrests and casualty work, with a source saying: “I go to them because I know they have the flexibility and entrepreneurial expertise to find a solution to difficult problems, however tricky they are.”‘ –  Chambers and Partners, 2018    

Significant Matters

  • We assisted Transnet SOC in opposing a class action by pensioners brought against the Transport Pension Fund, the Transnet Second Defined Benefit Fund and Transnet SOC seeking declaratory relief and related damages. This is the first class action certified in South Africa and the largest civil action claim in South Africa to date.

  • We advised the South African Department of Economic Development on a critical tax matter where Cart Blanche Marketing cc (the applicant) sought to have South Africa’s Import Control Regulations reviewed and set aside.

  • We advised RTT Group (RTT) when its logistics services to a client were terminated and awarded to a competing contractor. RTT contended that Section 197 employee transfer provisions applied and that its employees were transferred automatically to the new contractor. This was an important principle to be established in light of significant turnover of logistics suppliers in the market.

  • We assisted the Passenger Rail Agency of South Africa (PRASA) in obtaining an interdict regarding the rescission of court orders following successful arbitration awards. The court orders had been granted as a result of settlement agreements concluded without proper authority and due process within PRASA thereby compromising governance controls within PRASA.

  • Bowmans advised a global shipping company in relation to the construction aspects of its bid for a concession to design, build and operate a new cruise terminal and related infrastructure in South Africa.

  • Bowmans advised contractor in relation to EPC and O&M contracts relating to a major roads PPP programme in Kenya.

  • Bowmans successfully advised a client on its disputes relating to maintenance works on rail infrastructure. 

  • We advised Kenya Airways plc (KQ) on its balance sheet restructuring which included USD 750 million of sovereign guarantees from the Government of Kenya to KQ’s creditors, US Exim Bank and 11 Kenyan commercial banks. The restructuring was linked to a USD 175 million term facility for KQ from eight of the Kenyan Banks.

  • APM Terminals (APMT) on its joint venture to develop a terminal in the port of Mombasa. This was a significant investment for APMT in East Africa. The transaction involved the acquisition and development of a Container Freight Station. Our role included undertaking legal due diligence, providing advice on the legislative environment and the ongoing changes to Kenyan maritime laws, land and property law as well as regional customs regulation and licensing.

  • Aeolus Kenya Limited BVI in respect of the conclusion of a framework agreement between Aeolus Kenya Limited BVI and the Kenyan Government for a six phase project in the LAPSSET Corridor, which will include a port, LNG plant, destination plant, pipeline and airport.

  • Advised on the concessioning of Kenya and Uganda Railways, for 25 years, by the Kenya and Uganda Governments. Acted as team leader in charge of:

    • negotiating concessioning agreements;
    • providing review of legal framework in Kenya;
    • drafting and assisting in negotiations of finance documents;
    • and all legal work relating to corporate structuring in Kenya (including work on shareholders agreements).

    This also involved coordinating Ugandan Lawyers.  Role: Team Leader.

  • Skytanking (an oiltanking subsidiary) in relation to its contract with Airports Company South Africa for the provision of refuelling services at King Shaka International Airport.

  • Ferromarine Africa (Saldanha) and Ferromarine Cape (Cape Town) in relation to the creation of oil and gas manufacturing and repair facilities.

  • Confidential client: Multi-jurisdictional logistics transport, warehousing and storage due diligence review.

  • Port of Singapore Authority and Marubeni, in connection with their bid for the development of the second container terminal in Mombasa.

  • Oiltanking Grindrod Calulo (an oiltanking subsidiary) in relation to its proposed BOOT agreement for an oil storage facility at the Port of Ngqura.

  • Negotiating the sale of OMEGA oil rig for PetroSA.

  • PetroSA on their gas to oil projects in Mossel Bay and Iran in joint venture with Statoil and National Iranian Oil Corporation.

  • Walvis Bay Gas to Power Project advising the lenders on the financing of facilities comprising an LNG floating storage re-gasification unit, offshore pipeline and port receiving facilities, and open cycle gas turbine power plant.

  • ENRC (through consulting firm A-Cubed Consulting (Pty) Ltd), in respect of the development of a 1 200km transport system to carry coal by rail from Tete Province, Mozambique and ship it through a terminal at Nacala, including all regulatory and contractual documentation for the project.

  • TCM Bulk Terminal in Matola, Mozambique, including drafting terminal regulations, standard terms and conditions and take or pay agreements.

  • Transnet Ltd, as transaction adviser in connection with the proposed new Durban Dig-out port in which the old airport will be dug-out and converted into a multi-terminal additional port for Durban.

  • LBH Mozambique Lda in connection with new Port Regulations for the Port of Maputo.

  • Confidential client: port terminal and marine transport in Great Lakes region

  • Advising a confidential client in connection with the development and use of LPG off-loading and storage facilities in one of the South African ports.

  • MSC Cruises S.A. in connection with the concession awarded to them to build and operate the new cruise terminal in Durban.