In a split decision by the Supreme Court of Appeal the majority judgment diverted from the long standing practice underpinning protective writs derived from English law. The associated ship, the Seaspan Grouse, had changed ownership between the issuing of the protective writ and the actual service thereof, arrests had been previously upheld despite the change of ownership in accordance with the principles articulated in the Monica S adopted from English law.
The majority judgment, however, interpreted the arrest provisions of the Admiralty Jurisdiction Regulation Act 105 of 1983 to be incompatible with the Monica S and held that although a protective writ could still be issued it gave no protection to a claimant against an intervening bona fide change of ownership.
The minority judgment argued that this could not have been the intention of the legislature considering the unique difficulties facing the enforcement of maritime claims; even where it may have been argued that right against arbitrary deprivation of property was unconstitutional, this would probably have been justified in the context of maritime claims.
The minority concluded that if such a radically different trajectory in admiralty law from the Commonwealth jurisdictions had been contemplated by the legislature it would have been unambiguously provided for and that no reason existed to divert from the prevailing practice.
MV Seaspan Grouse: Seaspan Holdco 1 Ltd v MS Mare Traveller Schiffahrts GmbH (376/18)  ZASCA 02 (1 February 2019)