Did SA miss the boat on sunken treasure?
South Africa signed a deal to salvage R600m of sunken silver without knowing that a British company had already scooped it up.
Now a British court is set to decide whether South Africa has to pay a fee for a salvage job it never commissioned — for a treasure it had abandoned.
The 60-tonne, 2,364 silver piece cargo of the British ship SS Tilawa was back in the spotlight during a two-day UK Supreme Court of Appeal hearing last week, the latest chapter in a years-long legal saga.
The South African government has laid claim to the cargo, which was salvaged by the British company Argentum in 2017 and put into safekeeping. Argentum subsequently lodged a salvage claim which South Africa is appealing. Judgment is expected in January.
But while initial media attention focused largely on whether South Africa has sovereign “immunity” from Argentum’s salvage claim, it has since emerged that South Africa in 2018 signed a Tilawa salvage contract with US-based Odyssey Marine — without realising that Argentum had already beaten them to it.
The precious cargo, originally intended to be melted into South African Union coins, had sat on the ocean bed near the Seychelles for more than 70 years, since it was torpedoed by a Japanese submarine in 1942 during World War 2. Nearly 300 people died.
Odyssey’s involvement was mentioned in the UK court proceedings and was again in the spotlight last week, local maritime sources said this week. The company and the South African government signed a contract — seen by the Sunday Times and confirmed this week by the department of forestry, fisheries & the environment (DFFE).
The contract, signed by the department’s then director-general Nosipho Ngcaba, stipulated that Odyssey pay South Africa 15% of the cargo value. “The department on behalf of the government did contract with Odyssey in 2018, which is public knowledge,” said DFFE chief communications director Peter Mbelengwa. “In short, at the time the department contracted with Odyssey, it was not aware that the silver had already been recovered by Argentum Exploration Ltd,” Mbelengwa said.
UK court documents claim Odyssey approached then South African deputy President Cyril Ramaphosa in September 2016 “with a view to securing a salvage contract”.
A source close to the UK case said there were still questions about South Africa’s commercial relationship with Odyssey. “Knowing that the cargo had been lifted and was in the UK they seem to have persuaded the South African government to sign an agreement that they would split the reward,” the source said. Odyssey could not be reached for comment.
Emile Solanki, whose grandfather died aboard the Tilwana and who has been closely following the UK case, said questions raised last week in court included whether Argentum ever received permission to visit the wreck site and whether it or Odyssey is the rightful salvor. Of more immediate concern for local salvors, however, is whether South Africa will also lose out on other treasures sitting in South Africa’s territorial waters, along a coastline with more than 3,000 shipwrecks.
Despite seeking to cash in on its Tilawa silver, the government has been reluctant to issue permits for historic wreck sites in South Africa, which are protected in terms of the National Heritage Resources Act. Local salvors said this week that multiple wrecks, some with precious cargo, are gathering starfish at known locations due to an apparent stalemate in supporting local salvage projects. A notable case in point is the wreck of the Brederode off Cape Agulhas, known to contain a fortune of porcelain, gold and tin.
The South African Heritage Resources Agency (SAHRA) recently acknowledged concerns about the wreck when it invited service providers to undertake a survey of the site. “There have been concerns raised in recent years that this wreck is being damaged by trawling and other activities and there is a sense that we urgently need to gather information as to its status,” SAHRA said in a notice. It did not respond to queries about the Tilawa case this week.
Nick Sloane, South Africa’s best-known salvor, who lifted the Costa Concordia cruise liner which sank off the Italian coast, said the case was being closely watched due to its possible implications. “The salvors have a right to claim salvage. They put in a lot of effort to locate the wreck and recover it,” he said.
But legal opinion appears divided over whether a UK court can instruct South Africa’s government to pay a salvage fee, or whether South Africa indeed has “immunity” from decisions made in foreign courts — which is South Africa’s legal argument in the matter.
“The key issue is not ownership of the silver, but whether the English courts are the right forum to decide if a reward should be paid to Argentum for salvaging the silver, and if so, how much,” said Robert Volterra and Jehad Mustaf from Volterra Fietta International Law Firm in their commentary on the case.
“It is now accepted by the English courts, and all the parties in the case, that South Africa is the rightful owner of the 60 tonnes of silver that was salvaged, and that the vast majority of this silver was to be used for the sovereign purpose of minting coins for the Union of South Africa (as it was).”