Until the recent Cape Town High Court decision in The mv Asturcon v Afriline Denizcilik, there had been uncertainty about the effect of an application for leave to appeal the setting aside of an arrest in rem.

For those affected by an arrest, notably shipowners and charterers, the issue has important practical effects. For example, if an arrest is lifted by order of the court, can the vessel leave the jurisdiction even if the arresting party immediately files a notice of appeal? Similarly, if security has been put up for the release of the vessel from an arrest which is later set aside, can one insist on the immediate return of the security notwithstanding an appeal? In both instances the financial repercussions of continued detention of the vessel or withholding of security can be considerable.

On considering the matter, Acting Justice Van Rooyen took as his starting point Section 18(1) of the Superior Courts Act 2013 and Uniform Rule 49(11), which provides that “the operation and execution of a decision” which is the subject of an application for leave to appeal or of an appeal is suspended pending the decision on the application or appeal. In light of this, the main issue for determination is whether an order setting aside an arrest in rem which is issued by the court registrar and obtained without notice is a decision which is susceptible to execution.

The court found in The mv Asturcon that such a decision is not susceptible to execution and accordingly ordered Afriline Denizcilik and its attorneys, Norton Rose Fulbright, to return the Gard LOU to the applicants within 24 hours of the order.