This is an appeal from Owners of the Cargo Lately Laden Aboard the MV Jute Express v MV Jute Express 1991 (3) SA 246 (D) (CMI825) in which Howard JP concluded that the plaintiffs' action for cargo damage was in time, it having commenced with the giving of an undertaking. As regards the requirement in art 3.6 of the Hague Rules that 'suit [be] brought', Howard JP held that to 'bring suit' was to commence the appropriate proceedings for enforcing the claim, and that the question as to when suit was brought was to be determined by the law of the country and the practice of the Court where suit was brought.

Concerning the relevant provisions of s 3 of the Admiralty Jurisdiction Regulation Act 105 of 1983 ( the Act), the Court below reasoned that an action in rem generally commenced with the arrest of the property concerned. That basic provision was subject to the terms of s 1(2)(b) of the Act, whereby such an action was deemed to have commenced by the issue of process. However, those terms applied only to statutory time limits and not in the present case where the time limit was contractual. With regard to s 3(10)(a), the Court held that the plain meaning was that if an undertaking was given to prevent an arrest, the property was deemed to have been arrested. In the result Howard JP held that nothing warranted a departure from what he considered was the plain meaning of s 3(5) and s 3(10)(a) and that the action had therefore commenced with the giving of the undertaking. The defendant appealed.

Held: The appeal succeeds with costs. The order of the Court below is set aside and replaced by the following: 'The special plea is upheld and plaintiff's claim is dismissed, with costs.'

With regard to the requirement in art 3.6 of the Hague Rules that 'suit [be] brought', it appears to be inconsistent with the initiation of litigation that, supposedly, action was commenced in the present case by respondent's mere passive acceptance of security. However, if it were plain from the Act and the Admiralty Proceedings Rules that in South Africa an action in rem could competently be commenced in the present circumstances by nothing more than the giving of security then it would be difficult to avoid the conclusion that such would be enough to comply with art 3.6. The question to be answered is: what does South African admiralty procedure lay down as regards the commencement of an action in rem?

First, by the time the Act was passed, this Court had long since held that all actions commence with the issue of summons. There was therefore no need for the lawgiver to say I anything in s 3(5) about when action would commence. It was a matter of settled procedural law.

Secondly, the subject of commencement had in any event been dealt with in s 1(2) insofar as the legislature had thought it necessary to deal with it at all.

Thirdly, on respondents' argument, the terms of s 1(2)(b) and s 3(5) are contradictory. By virtue of the former, an action is deemed to commence with the issue of process. The latter subsection, if literally interpreted, would mean that the action commences with service of the warrant of arrest.

Fourthly, one must ask what the legislature did intend to lay down in s 3(5). Because this topic was not a matter of dispute between counsel it is unnecessary in this judgment to say more than that the primary purpose of an arrest in such an action is to give the action utility and effectiveness by affording the plaintiff pre-judgment security. Section 3(5) therefore seeks to achieve that purpose in all actions in rem by making an arrest an essential requirement. It is unnecessary for the attainment of that object, and irrelevant to it, to require, in addition, that the arrest should initiate the action. Indeed, the legislature's objective would in no way be defeated if the action were to commence with the issue of summons.

Fifthly, it is significant that where the legislature is pertinently concerned with the moment of initiation of the action it uses, in s 1(2), the word 'commenced' and not, as in s 3(5), the word 'instituted'. The contrast is more marked in the signed Afrikaans text. Section 1(2) uses the expression ''n aanvang te geneem het', while in s 3(5) the term is 'word ingestel'. These are strong indications that s 3(5) was not intended to deal with the matter of commencement. Furthermore, one finds the word 'instituted' ('ingestel') in s 3(2) and 3(3), and the word 'brought' ('ingestel') in s 3(6). The legislature was quite obviously not referring to the commencement of the actions referred to there. In those subsections the word 'instituted' and 'brought' manifestly have a broader meaning than 'commenced' and were intended to refer to the process of bringing the claim before Court. There is every reason to think that the legislature intended the word 'instituted' to have that same meaning in s 3(5).

Sixthly, in South African admiralty practice from the last century until the passing of the Act, the action was commenced by the issue of summons: see r 5 of the Rules made in terms of the English Vice-Admiralty Courts Act 1863 (in force in this country by virtue of the Colonial Courts of Admiralty Act 1890). The legislature must be taken to have been aware of such practice and no reason suggests itself why any alteration in that longstanding state of affairs would have been thought necessary or advisable.

Seventhly, if the action were commenced by arrest and not by issue of summons, it would mean that in the familiar situation where summons is issued in anticipation of a ship's arrival there would be no action in existence until, eventually, the ship were arrested. The concept of an issued summons bringing no action into existence is one which is compatible neither with logic nor established practice.

Finally, to interpret the Act as meaning that the action commences with the issue of summons, and not with an arrest, is to adopt a construction which not only accords with established procedure but one which involves no inconsistencies or incongruities.