In 2013, the fully laden bulk carrier MV Smart ran aground, broke up and sank at the entrance to Richard Bay harbour. This incident has given rise to various legal proceedings, including London arbitration proceedings by the owners against the time charterer, Minmetals Logistics Zhejiang Co Ltd (Minmetals) alleging a breach of a safe port warranty. The owners of the MV Smart also sued the National Ports Authority, a division of Transnet (SOC) Ltd (Transnet) in delict in the High Court, alleging that Transnet failed to provide a safe port. Minmetals, in turn, sued Transnet in delict for an indemnification should it be held liable to the owners in the London arbitration.

In June 2020, the London arbitration tribunal found that, although there were some shortcomings in the running of the port, it was the master’s negligent navigation of the vessel which caused the MV Smart to ground, and that this constituted a novus actus interveniens which broke the chain of causation, including the alleged lack of safety of the port. In view of this award, Minmetals withdrew its indemnity action against Transnet. The owners’ action against Transnet continues. It is defended on the basis, inter alia, as found in the arbitration, that the loss or damage suffered by the owners was a result of the negligence of the master and crew.

In this current litigation, Transnet served a notice on the owners requesting further documents which had featured in the arbitration. The owners asserted privilege in respect of these documents and Transnet sought to compel disclosure. The owners indicated a willingness to waive their privilege but argued that this cannot be done unilaterally and requires the concurrence of Minmetals. Minmetals refuses to agree to the disclosure of the document based on their confidentiality. In June 2021, the owners, relying on the provisions of s.5(1) of the the Admiralty Jurisdiction Regulation Act (“AJRA”),2 moved for the joinder of Minmetals to the application to compel disclosure. Transnet did not oppose the joinder application. Minmetals opposed the application for joinder and maintained the possibility of proceeding before the London arbitration tribunal, or an English court, for an order restraining the owners from producing the documentation.