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

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’