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The court found that SAMSA was, in terms of section 21 of the Act, limited to impose conditions which are necessary to protect the marine environment.

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Sizwe sama Yende

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The chief operations officer of the South African Maritime Security Authority (SAMSA) acted outside his powers when he imposed a BEE shareholder on an offshore bunkering company.

Although a SAMSA board internal disciplinary hearing cleared Sobantu Tilayi on this charge and others last year March and reinstated him after two years of suspension, the Pretoria High Court later issued a declaratory order after the bunkering company, South African Marine Fuels (SAMF), applied for a declaratory order.

Tilayi gave SAMF a condition to absorb a certain Thamsanqa Gcaba as a BEE partner in 2018 before SAMSA could give it approval to operate when the Transnet National Ports Authority of South Africa licenced SAMF to offer bunker delivery services (selling of fuel from ship to ships) at the ports of Ngqura (Coega) and Gqeberha and Algoa Bay until 23 May 2027 and 29 November 2023 respectively.

Tilayi mentioned this condition in an e-mail dated January 22 2018. Although SAMF fought and was permited to operate, SAMF’s executive Chrystel Basset-Simmonds took the matter to court to get a declaratory order.

Last September, the court found in SAMF’s favour, confirming that Tilayi had sought to force SAMF to incorporate Gcaba as the company’s BEE partner.  

Tilayi did not respond to written questions about the court order, which has so far remained unreported in the on-going saga at SAMSA. 
Tilayi, who was acting CEO, sent another e-mail on January 25 2021 advising that SAMSA would be conducting a compliance audit during February of that year whose scope extended to legislation not administered by SAMSA.

SAMF felt that that SAMSA was acting ultra vires by conducting an audit on matters that did not fall within its jurisdiction in terms of section 21 of the South African Maritime Safety Authority Act 5 of 1998 (the SAMSA Act).

The Act gives SAMSA the powers to prevent and combat pollution of the marine environment and enforce safety.

SAMF then launched an application seeking declaratory relief. SAMSA argued that the declaratory relief sought was incompetent and rendered moot because the suspension of the approval granted to SAMF was set aside. In other words, SAMSA said, there was no live dispute on which a declaratory order could be issued.

“SAMF however argued that there is manifestly still a live dispute and is of the view that it is imperative that the court rules on the nature and powers under section 21 of the Act and on the issue arising in relation to section 10(1) of the BBBEE Act as these are legal issues and it is of critical importance in achieving legal certainty in relation to SAMSA’s on going and future regulation of the offshore bunkering industry in terms of section 21 of the Act,” reads the court documents.

The court found that SAMSA was, in terms of section 21 of the Act, limited to impose conditions which are necessary to protect the marine environment. “It is trite that a power given for a specific purpose may not be misused in order to secure an ulterior purpose,” the court said.

The court ordered that:

•    The only conditions which SAMSA was empowered to impose in terms of the Marine Pollution Act, were those which were necessary to protect the marine environment from pollution by oil and other harmful substances
•    The recordal that all other statutory requirements of the Republic, outside the jurisdiction of SAMSA are adhered to, did not constitute a stand-alone condition imposed by SAMSA in terms of the Marine Pollution Act. 

SAMSA was ordered to pay all legal fees pertaining to the fight with SAMF.