By Lana Stockton, Partner, and Kimberleigh Saamlaal, Associate, Bowmans. The authors acted for the successful arresting party in the High Court top-up security application and in defending the appeal before the Supreme Court of Appeal.
A ship is arrested. Security is put up. The vessel sails.
For many arresting creditors in South Africa, utilising the broad arrest provisions contained in the Admiralty Jurisdiction Regulation Act 105 of 1983, that is usually the end of the security issue in South Africa. However, maritime disputes are rarely so tidy. Claims change. Exposure grows. A contingent liability becomes a real one. A bunker claim that was uncertain at the time of arrest later crystallises into a quantified claim.
The question then becomes: is the arresting party stuck with the security it first accepted, or can it come back for more?
In MV Tai Harmony and Another v Sure Success Steamship S.A and Another [2026] ZASCA 60, the Supreme Court of Appeal (SCA) gave a clear answer: in the right circumstances, South African courts can order further security to be provided.
The judgment is one of the more important recent decisions on South African admiralty security and one of the few reported cases dealing directly with top-up security under section 5(2)(d) of the Admiralty Jurisdiction Regulation Act (AJRA). It also reinforces South Africa’s position as a favourable jurisdiction for securing maritime claims.
The commercial problem
Sure Success arrested the MV Tai Harmony as an associated ship in South Africa to secure claims being pursued in London arbitration for unpaid hire. Security was furnished and the vessel was released.
At the time, a claim anticipated by owners against charterers for an unpaid bunker stem had not yet crystallised. Sure Success had, however, reserved its right to seek further security if that claim later matured. The letter of undertaking (LoU) also expressly preserved the right to seek top-up security.
When the bunker claim later crystallised, Sure Success returned to court and asked for more security.
Owners resisted and argued, in substance, that security had already been given, the arrest was under challenge, and Sure Success should not get a second bite at the security.
The High Court disagreed. So did the SCA.
Security is not frozen in time
The SCA’s approach is commercially sensible. It recognises that maritime claims often unfold in stages. At the beginning of a dispute, not every claim is final, quantified or enforceable. Some claims remain contingent until a settlement is reached, a liability is paid, or an arbitration position becomes clearer.
The Court confirmed that South African admiralty law is flexible enough to deal with this reality. Existing security can be increased where it becomes inadequate, provided the arresting party shows a prima facie maritime claim and a genuine and reasonable need for security.
Top-up security is therefore not automatic, but it is available where the facts justify it. The practical importance is clear: an arresting party is not necessarily confined to the amount of security first obtained if the commercial position later changes.
No fresh arrest and no need to start again
One of the strongest practical points in the judgment is that Sure Success did not need to arrest the vessel again.
Under South African law and the provisions of AJRA, where security is furnished in place of an arrested vessel, the vessel is treated as remaining under deemed arrest. This keeps the court’s jurisdiction and oversight alive. Accordingly, when the bunker claim crystallised, Sure Success could return to the existing security proceedings and ask the court to increase the security already held.
The original arrest was also being challenged in separate setting-aside proceedings. The SCA held that this did not prevent the court from ordering additional security while the arrest remained extant. The challenge to the arrest would continue in the proper forum, but the court was not disabled from preserving and regulating security in the meantime.
For arresting parties, this avoids the risk and expense of trying to locate another arrestable asset. For owners and Clubs, it is equally important: providing security may release the vessel, but it does not always end the court’s control over the security position.
Security may exceed the value of the vessel
The Court also confirmed an important point for larger claims: for a security arrest under section 5(3) of the AJRA, security is not necessarily capped at the value of the arrested vessel.
The SCA held that a claim may exceed the value of the vessel and that security is generally governed by the value of the claim.
The ‘Heavy Metal’ approach
The owners also sought to use the appeal to reopen the foundation of the associated ship arrest. They invited the SCA to revisit the established MV Heavy Metal approach to control in associated ship arrests.
The SCA did not treat the top-up security appeal as the appropriate forum for that debate. The Court found that the association issue was already the subject of separate setting-aside proceedings and was not for the court considering the top-up security to reconsider as if it were sitting on appeal against the original arrest. For purposes of the top-up application, what mattered was that there was an extant arrest and existing security, a prima facie maritime claim, and a genuine and reasonable need for further security.
The SCA also left the Heavy Metal approach intact and held that academic criticism of the judgment did not justify departing from binding SCA authority in this appeal.
The result is commercially significant. South Africa’s control-based associated ship regime remains firmly in place. Courts will continue, in appropriate cases, to look beyond corporate form and consider the reality of ownership and control and importantly ascertaining the identity of the party that has the ability to control the fate and destiny of the registered owner of the ‘associated ship’.
Why this may matter for ICA claims
Although the case concerned top-up security for a bunker claim, the effects may be further reaching.
South African courts have taken the approach that contribution and indemnity claims under the inter-club agreement only crystallise once the underlying cargo claim has been settled or paid, as was the case in both Primegates Maritime Company Ltd v The Bunkers On Board The Cargo Explorer 1995 CLD 617 (D) and Wajilam Exports (Singapore) Ltd v Transpacific Eternity Sa SCOSA B 195 (D). This creates a familiar timing issue: where other enforceable maritime claims exist between owners and charterers, the ICA claim may not yet be fully enforceable when security is first obtained for those other enforceable maritime claims.
Tai Harmony may offer a route through that problem. Where there is already an existing arrest and security has been obtained for other maritime claims between owners and charterers, such as unpaid hire, a later-crystallising ICA or indemnity claim may support a top-up application, especially if rights were clearly reserved at the outset. This remains to be tested before the courts.
The practical lesson
The judgment is not only about one bunker claim. It is about security strategy.
If a claim may grow, the security arrangements must be drafted with that in mind. Arrest papers and LOUs should deal carefully with contingent claims, developing claims and future top-up rights.
For arresting parties, Tai Harmony confirms that South African courts will not treat security as a once-off arrangement, frozen in time, where the commercial picture has changed.
For owners, charterers and Clubs, it is a reminder that security furnished today may not be the final measure of tomorrow’s exposure.
More broadly, the judgment shows the strength of South Africa’s admiralty regime: practical, commercially aware and capable of responding to the way maritime claims actually develop.
