COURT ORDER PREVENTS TRANSIT OF ARMS FOR ZIMBABWE


When Bishop Rubin Phillip of the Anglican Diocese of Natal and Paddy Kearney, a consultant to the KwaZulu-Natal Christian Council (KZNCC) became aware on 17 April that the Chinese ship,
An Yue Jiang, was anchored outside Durban harbour awaiting clearance to dock and discharge six containers of weapons destined for the Zimbabwe Defence Force, they began to explore what could be done about this situation.

Given the post-election crisis in Zimbabwe, it appeared highly irresponsible for the South African authorities to permit these weapons to be transported through South Africa and delivered to Zimbabwe, thus adding to the conflict and violence already taking place in that country. There is widespread awareness that the Zanu-PF regime is doing everything possible to subvert the election results which show that it lost the election. They have embarked on a campaign of military-sponsored violence against the opposition, in order to intimidate people to vote for Mugabe in a run-off election.

It was agreed between Bishop Rubin Phillip and Paddy Kearney that an application should be made to the High Court for an urgent interdict to prevent the weapons from reaching Zimbabwe. Bishop Rubin Phillip agreed to lend his name to such an application. Advocate Malcolm Wallis SC, a leading expert in maritime law, instructed by Attorney JP Purshotam, with extensive experience of human rights law, agreed to bring the application, assisted by Advocates Angus Stewart and Max du Plessis.

A founding affidavit was drawn up by this legal team together with supporting documents about the situation in Zimbabwe. At the request of JP Purshotam, Paddy Kearney agreed to be the Second Applicant, with Bishop Rubin Phillip as First Applicant.

The seven respondents identified were:

National Conventional Arms Control Committee
Minister of Defence
Secretary of Defence
Minister of Foreign Affairs
AB Logistics
Port Captain, Durban Harbour
Transnet National Ports Authority.

By the early afternoon of 18 April, the legal team had finalized the application and it was signed by Bishop Rubin. Notification was given to the Registrar’s Office of the High Court, of the urgent application and the Registrar was asked to arrange for a judge to be in attendance. The matter was set down for hearing before Madam Justice Kate Pillay for 5.00pm on 18 April. Both applicants were present for the hearing.

Appearing for the applicants was Advocate Malcolm Wallis SC, instructed by Attorney JP Purshotam and assisted by Advocates A Stewart and M du Plessis. Appearing for the first two respondents, was Attorney Krish Govender of the State Attorney’s office, assisted by Mr Hennie Smal. During the hearing, Mr Govender expressed concern that it had not been possible for himself or the respondents to study the papers at such short notice, and that he was therefore not in a position to obtain full and proper instructions from them. It was therefore agreed that a rule nisi should be issued returnable on 25 April when they would have a full opportunity to present their response.

After an hour of deliberations, an interim order was issued by Justice Pillay in the following terms:

a. “Suspending the operation of the conveyance permit issued by the Third Respondent on or about 14 April 2008 to the Fifth Respondent under the National Conventional Arms Control Act 41 of 2002 as read with the Regulations promulgated thereunder on 28 May 2004 in Government Gazette No R 634, authorizing the conveyance of six containers of arms discharged from the MV “An Yue Jiang” pending the final determination of the relief sought in Part B of the Notice of Motion; and

b. “Ordering that the Fifth Respondent is prohibited from in any manner whatsoever taking delivery of and/or conveying the consignment of goods contained aboard the MV “An Yue Jiang” and described in the Arrival Notification dated 10 April 2008 under the description “3080 CASES … ARMS”, pending the final determination of the relief sought in Part B of the Notice of Motion; and

c. Ordering that the Sixth and Seventh Respondents are prohibited from in any manner whatsoever permitting the consignment of goods described in paragraph 3 above from being removed from the precincts of Durban Harbour, pending the final determination of the relief sought in Part B of the Notice of Motion.”

Approximately an hour later, the An Yue Jiang weighed anchor and began to move in an easterly direction, apparently to get out of South African territorial waters so that the Court Order could not be served on it.

As the applicants in this matter, we would like to thank our legal team who did a superb job at short notice. We are most grateful for the energy and brilliance with which they argued our case, and for doing so pro deo.


Bishop Rubin Phillip
Paddy Kearney

Durban
23 April 2008