Tough nut for PE court

A Port Elizabeth court could decide what will ultimately happen to the 50 000 tons of phosphate allegedly illegally removed from the disputed territory of Western Sahara. The NM Cherry Blossom, en route to New Zealand, was arrested in Algoa Bay on May 1, following claims that the sale of the cargo it was carrying – with an estimated value of R80-million – was in fact unlawful.

The Saharawi Arab Democratic Republic (SADR), which claims to be the lawful and rightful owner of the phosphate, is seeking an interdict pending further legal argument on whether the vessel should proceed to the buyer of its cargo in New Zealand or be returned to the Saharawi people.

A provisional restraint order was granted by Judge Elna Revelas at the beginning of the month.

A cargo of phosphate was extracted from the Bou Craa mine and was en route to Ballance Agri-Nutrients Ltd in New Zealand when it was stopped in Port Elizabeth.

While the SADR, represented by its ambassador to SA, Rahdi Bachir, contended that Phosboucraa at the Bou Craa mine in Western Sahara did not have title to sell the cargo and therefore the sale was invalid, lawyers on the opposing end maintained this was a political matter which should not be decided by a foreign court.

Advocate Max du Plessis submitted to a full bench of the Port Elizabeth High Court on Thursday that no court had ever determined a claim such as this.

“The determination here is not merely a territorial dispute with no connection to South Africa, but the court has been asked to interfere and attempt to resolve, through domestic law, a current and pressing international dispute currently before the United Nations,” Du Preez said. Judgment was reserved. The NM Cherry Blossom was carrying about 50 000 tons of phosphate from Laayoune in the Moroccan-controlled disputed territory when it was banned from leaving the Port of Ngqura.

The crux of the argument by the applicants – the SADR and the Polisario Front – is that they are, under international law, the rightful owners of the cargo.

They said Morocco had contravened international law in relation to the region from which the cargo was mined.

The Polisario Front is a national liberation movement representing the Saharawi people.

Western Sahara has been disputed since 1975, when Morocco claimed it as part of the kingdom and the Polisario fought a guerrilla war for the Sahrawi people’s independence.

The two sides have been locked in diplomatic battles since.

In May 2014, SADR passed an international mining law that all mineral resources located in public or private land located within the SADR and its exclusive economic zone was the property of the state.

Advocate Anton Katz SC, for the SADR, said the phosphate had been sold and exported without the prior consent of the Saharawi people.

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