For the past few weeks, there have been numerous reports that a Russian superyacht, The Nord, was en route to dock in Cape Town, South Africa. The Nord, according to various reputable reports, was scheduled to arrive in Cape Town around 9 November 2022. It is owned by Russian oligarch Alexey Mordashov, with supposedly close ties to president Vladimir Putin.

The yacht’s approach to Cape Town created a spat, with the Mayor of Cape Town, Geordin Hill-Lewis, complaining that a pungent symbol of Russian profligacy should not be permitted to mosey its way into Cape Town’s harbour while Ukrainians were fighting an illegal war of occupation.

President Cyril Ramaphosa’s spokesperson, reflecting South Africa’s pilloried position of “neutrality” on Russia’s aggressive and violently waged war, suggested that the yacht would be permitted to arrive nonetheless. 

The yacht has disappeared. Over two weeks ago, on 24 October 2022, The Nord switched off its transponder. The Nord was last seen near Banda Aceh in Indonesia. There were some unconfirmed reports that The Nord was spotted off the coasts of Sri Lanka and Maldives. South African port authorities have not received a request from The Nord to dock at the port in Cape Town. It appears that The Nord may have changed its mind about Cape Town, if it ever intended to dock there.

The choice is a wise one for its beneficial owner, Mr Alexey Mordashov.

Mordashov is ranked the second richest person in Russia. He is worth around $21.2-billion. He controls a conglomerate of companies, with businesses ranging from travel to commodities. Mordashov is the majority shareholder in Severstal, Russia’s largest steel company. Mordashov also co-owns Rossiya Bank, a bank notorious for its funding of the unlawful annexation of Crimea and allegedly assisting Russian elites with keeping wealth offshore through networks of shadow companies.

Since February 2022, after Russia invaded Ukraine, eight different jurisdictions have sanctioned Mordashov. While the sanctions differ in their reasoning slightly, they have a central theme. These jurisdictions have sanctioned Mordashov for his alleged involvement in Russia’s invasion of Ukraine. As an example, the European Union sanction reads:

“Alexey Mordaschov is benefiting from his links with Russian decision-makers. He is chairman of the company Severgroup. This company is a shareholder of Bank Rossiya, of which he owned around 5.4 % in 2017 and which is considered the personal bank of Senior Officials of the Russian Federation. Since the illegal annexation of Crimea, Bank Rossiya has opened branches across Crimea and Sevastopol, thereby consolidating their integration into the Russian Federation.

“Furthermore, Severgroup has considerable stakes in the National Media Group which in turn controls television stations which actively support the Russian government’s policies of destabilisation of Ukraine.

“Additionally, Severgroup is owner of the company JSC Power machines which is responsible for selling four wind turbines to the occupied Crimean peninsula.”

Perhaps Mordashov used his billions to obtain urgent legal advice about the prospects of his luxury yacht being assailed in South Africa. Had he done so, he might have learnt that if The Nord entered South African territory, there was at least an appreciable risk of the yacht being seized or arrested.

The first way is if victims of wrongs committed in Ukraine applied to attach the yacht to found jurisdiction for a civil claim against Mordashov for any complicity by him in the crimes committed by Russia. If victims could prove, even at a prima facie level, that Mordashov was in some way complicit in aiding or abetting the commission of those wrongs, and that those wrongs caused victims loss, then they could sue Mordashov for that loss in South African courts even though the losses were suffered by victims overseas.

The Nord, a $500-million superyacht that’s connected to sanctioned Russian tycoon Alexey Mordashov, in Hong Kong, China, on 14 October, 2022. (Photo: Lam Yik/Bloomberg via Getty Images)

South African law, following the Roman-Dutch legal tradition, allows a court to assume jurisdiction over claims against a foreign person if that foreign person has assets in South Africa. Had Mordashov’s yacht entered South African waters, then from that moment Mordashov’s yacht could have been attached to found jurisdiction in a South African court. It would not matter that Mordashov does not live in South Africa.

There is another way the ship could have been attached. This second way involves suing the South African government, based on an international legal duty South Africa has to victims of certain wrongs.

International law obliges the South African government to provide effective relief to victims of gross and serious violations of human rights and humanitarian law. The United Nations General Assembly, in its Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, sets out this duty.

This duty, to afford effective remedies to violations of human rights, is also at the heart of the South African Constitution. South Africa’s duty to provide effective relief is no accident. The vast majority of South Africans are victims of a heinous international crime — apartheid. The Constitution, with its rights and system of governance, was deliberately and carefully designed to remedy that international wrong.

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The Constitution, building on international law, embodies repairing and addressing international wrongs. Perhaps Mordashov was advised that an applicant could invoke this duty to force the South African government to seize The Nord.

Over the coming months and years, Mr Mordashov and others of his ilk could face claims for their wrongdoing, including claims by individual victims and by Ukraine. They ought to be brought to task by people, countries, and the international community for their actions.

The illegality and criminality of Russia’s conduct, and its enablers, is an academic exercise in legal interpretation without proper, effective relief for the people of Ukraine who have suffered untold harm.

If The Nord has skulked away from our territory, that may well be because of the risk it likely faced if it seriously sought to dock in Cape Town. Not only the legal risk, but also the risk of civil society protests and other forms of advocacy against it and its owner.

South Africans — and Ukrainians in South Africa — are not likely to have supplicated the Russian government and her oligarchs. The outrage expressed across the country, by churches, civil society groups, and leading writers at the South African government’s craven stand on Russia’s aggression, may well have found an obvious outlet in the physical form of The Nord.

We have good historical evidence for that type of action, and a proud history of not allowing government sycophancy in its international relations to trump the human rights of real-bodied victims.

Recall the incident in April 2008 when the Chinese vessel — the An Yue Jiang — attempted to discharge a consignment of arms at the Durban harbour. That this consignment of arms attracted any attention was due in large part to the early warning and mobilisation of civil society and the media who reported — to the dismay of concerned South Africans and Zimbabweans — that the arms were destined for the Zimbabwean Defence Force run by Robert Mugabe, at a time when his government was violently suppressing political opposition.

More alarming was the news, subsequently acknowledged by the South African government, that the government’s National Conventional Arms Control Committee had issued a permit which allowed the arms to be transported over South African territory for delivery to the Zimbabwean Defence Force.

This behaviour by the South African government proved to be unlawful, in a court order granted by the Durban high court. Approximately an hour after the court order had been granted, the An Yue Jiang weighed anchor and began to move in an easterly direction, apparently to get itself out of South African territorial waters so that the court order could not be served on it.

Once the ship fled in order to avoid being served with the court order, civil society organisations were instrumental in further regional efforts that ultimately prevented the offloading of the arms in any southern African port. This included alerting the public to the fact that the ship was heading for Mozambique, having fled Durban’s port, and activating civil society networks in Mozambique.

Mozambique’s Transport Workers Federation declared that they would not transport the arms, prior to the ship even having entered Mozambique’s waters, and Mozambique government authorities ultimately stated that they would offer no assistance to the ship. The ship then reversed course, sailing along South Africa’s coast.

On the basis of information that the ship was bound for Angola, but that it might refuel in Namibia, civil society partners in Namibia and Angola respectively were alerted in an attempt to prevent offloading and transfer of the arms.

In Namibia, the Legal Assistance Centre prepared papers for a court challenge in anticipation that the ship might dock there. Various civil society protests were held. Church leaders spoke out, as did trade unions. Angolan government authorities, in response to civil society and diplomatic pressure, allowed the ship to dock and offload construction cargo that had always been intended for the port of Luanda, but refused to allow the discharge of the arms cargo.

The ship left Luanda around 6 May 2008, not having offloaded any arms cargo, but having taken on board fuel and supplies for its crew. It then headed in a southerly direction down the Namibian and South African coast and appears to have returned to China.

In light of the legal risks to Mr Mordashov, and recalling our proud history of activism in South Africa when disgraced vessels approach our harbours, perhaps it’s little surprise then that The Nord did not reach Cape Town.

The Nord is not here to sully our ports or shame our people, but instead is now among several Russian superyachts owned by oligarchs that are at risk of confiscation. That it is somewhere out there, hiding, with its transponder off, is a victory in itself, a little justice in the long walk to accountability for Russian atrocities. DM

Max du Plessis SC is Adjunct Professor, International Law and Constitutional Law, Nelson Mandela University and at the University of Cape Town, and Associate Tenant, Doughty Street Chambers, London. He writes in his personal capacity.

Eshed Cohen is an advocate of the High Court of South Africa and a member of the Pan African Bar Association of South Africa.