GIV­ING NO GROUND

Min­ing gi­ant OCP has re­fused to have any­thing to do with an own­er­ship dis­pute that at­taches to the is­sue of West­ern Sa­hara’s sovereignty

Financial Mail - - IN GOOD FAITH BY CARMEL RICKARD -

For what rea­son would a spe­cial­ist ex­trac­tion com­pany aban­don a cache of ma­te­rial it had mined, worth about US$6M? The an­swer lies in an in­ter­na­tional po­lit­i­cal dis­pute play­ing out in SA courts.

On May 1 a cargo of phos­phate from West­ern Sa­hara was on its way to New Zealand when its car­rier, the NM Cherry Blos­som, stopped for fuel in Port El­iz­a­beth. The phos­phate was mined by a sub­sidiary of Moroc­can com­pany OCP, the world’s largest pro­ducer of fer­tiliser ex­tracts and ex­porter of phos­phate rock and phos­phoric acid. It was taken from a mine in West­ern Sa­hara, some­times called Africa’s last colony be­cause its sovereignty is still un­der dis­pute. Morocco re­gards the for­mer Span­ish colony as part of its ter­ri­tory, while the Polis­ario Front, a lib­er­a­tion or­gan­i­sa­tion formed to en­sure post­colo­nial lib­er­a­tion, claims Morocco has no right to oc­cupy or mine there.

When the Cherry Blos­som ar­rived to re­fuel, Polis­ario brought le­gal ac­tion to at­tach the cargo so the courts could de­cide to whom it be­longs: OCP or “the peo­ple of West­ern Sa­hara”.

A full bench of the high court sit­ting in Port El­iz­a­beth ruled that the court had ju­ris­dic­tion to con­sider the ques­tion of own­er­ship. Sum­mons was duly served on

OCP at the end of June and it seemed the mat­ter would plod through the court sys­tem for some years.

But now OCP has dropped a bomb­shell: an un­prece­dented mul­ti­page di­a­tribe served on the reg­is­trar of the high court in Port El­iz­a­beth, lash­ing out at the court for what the com­pany de­scribed as its “po­lit­i­cal” de­ci­sion to hear the own­er­ship dis­pute.

OCP an­nounced it would have noth­ing fur­ther to do with the case, not be­cause it ac­knowl­edged the jus­tice of the Polis­ario claim on be­half of West­ern Sa­hara, but be­cause it did not be­lieve it would get a fair trial.

The com­pany ex­pressed “pro­found dis­ap­point­ment” that the court had al­lowed it­self to be

“used” by Polis­ario for “base­less and po­lit­i­cal al­le­ga­tions tar­get­ing Morocco” that are “noth­ing more than an act of po­lit­i­cal piracy”.

OCP also re­vis­ited events at the African Union ear­lier this year, when the ANC is­sued an “in­flam­ma­tory state­ment” ob­ject­ing to Morocco’s read­mis­sion be­cause it would en­dorse the “oc­cu­pa­tion” of West­ern Sa­hara by Morocco.

Ac­cord­ing to OCP, the court’s ac­tion would ham­per re­newed UN ef­forts to re­solve the ques­tion of West­ern Sa­hara’s sta­tus. It would also af­fect trade, as the court’s de­ci­sion “at­tacks the foun­da­tions of in­ter­na­tional free­dom of com­merce”, “paral­y­ses the gears of trade” and would cause in­ter­na­tional con­cern. OCP’S with­drawal from the pend­ing lit­i­ga­tion was a “re­spon­si­ble choice”, “ex­pos­ing [the pro­ceed­ings] as fa­tally flawed”.

In its re­sponse, the “Sahrawi gov­ern­ment” wel­comed OCP’S de­ci­sion to quit the fray, say­ing the min­ing gi­ant had given up its “hope­less de­fence of stolen prop­erty”.

What hap­pens next?

If OCP does not file no­tice of its in­ten­tion to fight the case be­fore the end of July, Polis­ario may im­me­di­ately ask for a de­fault judg­ment: a de­ci­sion that in the ab­sence of OCP would hand Polis­ario all it re­quested in its ini­tial ap­pli­ca­tion.

What will Polis­ario do with the cargo? The Cherry Blos­som is still wait­ing in Port El­iz­a­beth and, with Richard’s Bay the near­est port of­fer­ing suit­able off-load­ing fa­cil­i­ties, find­ing an out­right buyer for the at­tached cargo might be the bet­ter so­lu­tion.

And OCP? By aban­don­ing the cargo it will save the le­gal fees of a drawn-out case and avoid the risk of a court find­ing it is not the owner.

From the tone of its ex­tra­or­di­nary let­ter to the court, how­ever, this may not be the last com­plaint SA has heard from OCP.

Ac­cord­ing to OCP, the court’s de­ci­sion ‘at­tacks the foun­da­tions of in­ter­na­tional free­dom of com­merce’

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