Statement of the Saharawi government following the decision of the High Court of South Africa in the continuing detention of a cargo of phosphate rock for New Zealand from occupied Western Sahara

Bir Lehlu, Western Sahara (June 15, 2017).  On May 1 the government of the Saharawi Arab Democratic Republic (the SADR) and the Saharawi national liberation movement, the Polisario Front, obtained a civil court order to detain a cargo of phosphate mineral rock transiting through South Africa, illegally exported from occupied Western Sahara in April.  The 54,000 metric tonnes cargo, purchased by the New Zealand fertilizer company Ballance Agri-Nutrients Limited, has a value estimated at more than $7 million (NZD).

After 45 days, the cargo remains under detention aboard the Marshall Islands registered bulk carrier NM Cherry Blossom at anchor in Port Elizabeth.

Today the High Court of South Africa issued a decision on a review of the May 1 order to detain the cargo.  This procedural step was routine in South Africa’s civil justice system.  The Court confirmed the correctness of the May 1 order, that it had been obtained on proper grounds.  The civil lawsuit will now go to a trial on the question of ownership rights to the cargo.  Over the years, virtually every phosphate purchasing company had been warned of the risks of importing the commodity, including that ownership rights to it could not be transferred because of the illegal occupation of Western Sahara.

The High Court made observations about the validity of the case consistent with international law generally and recent decisions of other senior-level courts, including the Court of Justice of the European Union and the United Kingdom High Court.  The South African court noted that “Morocco has no claim to sovereignty over Western Sahara … Furthermore, it acquired the territory by force” and that “we conclude that howsoever Morocco’s presence in Western Sahara may be described, it does not exercise sovereignty over the territory”.

The Saharawi government has, through its legal team in South Africa, noted that it will receive favourably requests by parties interested in the motor vessel NM Cherry Blossom to release the cargo and permit the ship to resume ordinary trading.  A curious feature of the case is that no party, including Ballance Agri-Nutrients as owner nor the time charterer of the ship, has yet proposed putting forward or substituting a form of security for the value of the cargo.  It is thought that the New Zealand company has been given a replacement cargo – presently bound for the port of Tauranga aboard the the Greek registered bulk carrier Common Spirit – in return for not presenting a defence or otherwise seeking release of its cargo.

Together with a case in Panama which resulted in a claim against the motor vessel Ultra Innovation bound for Agrium Inc. in Canada on May 17, which case is now proceeding through a procedural appeal to be indirectly aided by the result in South Africa – the recourse to civil legal action demonstrates the resolve of the Saharawi government to protecting the natural resources of Western Sahara while the territory continues to be occupied.

The Saharawi government official responsible for resource matters, Emhamed Khadad, noted that: “The result in South Africa is consistent with international law and a growing number of recent decisions by respected courts. The basic principles are clear enough, and can no longer be explained away as some purportedly beneficial activity for Western Sahara.  We would do well to recall the finding of the High Court, on facts that are well known, that ‘those who benefit from the mining of the phosphate are not the “people of the territory” but, more likely, Moroccan settlers.’”  Khadad also explained that the result in South Africa is being examined for application in Europe in conjunction with an appeal decision of the Court of Justice of the European Union (which decision was adopted in the South African case).  “The Saharawi people have patiently supported the commitment of the United Nations to a self-determination process in Africa’s last colony.  They could no longer give themselves to such a process while remaining indifferent to the rule of law in the international order.  If the Saharawi people aspire to be a responsible member of the international community, then they have a role to play in improving the legal framework for the decolonization of Western Sahara.”