Filipino ports giant ICTSI fights for its Durban port deal  

Says it is appealing Maersk’s interdict as it ‘believes that the court erred significantly in granting the interdict’.

International Container Terminal Services Inc (ICTSI) – the Filipino ports giant led by billionaire Enrique Razon – will appeal a Durban High Court interdict on Wednesday, which has halted Transnet from implementing its public-private partnership deal with the group to take over operations of the Durban Container Terminal Pier 2 (DCT2).

This comes as Denmark-based rival Maersk, through its subsidiary APM Terminals, approached the courts this year to overturn the contract. The group is one of the failed bidders for the lucrative contract to run SA’s largest shipping container handling facility.

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Read: ICTSI to take Durban Port court interdict on review

ICTSI claims Maersk’s court action is based on “a non-material technicality”. It confirmed on Tuesday that it will seek leave to appeal the High Court ruling that stops its partnership with SA state-owned ports and logistics group Transnet.

“In July 2023, Transnet awarded ICTSI, a global top 10 firm that runs 32 port terminals in 19 countries, the contract to run the [Durban] container terminal. This was done following a rigorous and transparent bidding process,” it reiterated in a statement.

“In October, the KwaZulu-Natal High Court inexplicably ordered Transnet to halt further implementation of the agreement until the matter could be considered in court.

“ICTSI is on 4 December appealing the interdict as we believe the court erred significantly in granting the interdict. The full review of the awarding of the contract by Transnet to ICTSI, lodged by Maersk will still proceed in March 2025 regardless of the outcome of ICTSI’s application for leave to appeal. ICTSI’s appeal tomorrow does not impact the timeline or court dates of the main case,” it said.

Read:
Transnet’s privatisation of Durban container port needs a do-over
Has Transnet botched the ‘privatisation’ of the Durban container terminal?
Maersk questions ICTSI’s solvency in battle over Durban container port
Transnet selects Philippines-headquartered port operator for Durban Pier 2

The Manila-headquartered group added that “should the appeal against the interdict be successful, Transnet may continue to implement its agreement with ICTSI in parallel to the main case’s processes”.

The group claimed: “Maersk has misleadingly argued that ICTSI does not meet a non-defined definition of solvency – a metric used to show its financial ability to meet its obligations.

“ICTSI disputes Maersk’s narrow interpretation of how solvency should be calculated and disputes that the matrix was a mandatory pass/fail,” it said.

“The specific equation to calculate solvency was not prescribed in the tender documents and ICTSI argues its measure is a reasonable option which it has always been open and transparent about using. Transnet’s auditors reviewed and accepted the measure during the bidding process,” it added.

Read: Maersk contests Transnet’s pick for SA port partner

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“What is critical and material is that ICTSI had – and still has – the financial capacity to perform on the terms of the contract,” said Hans-Ole Madsen, ICTSI’s regional head for Europe, Middle East, and Africa.

“Transnet and their auditors were satisfied [with] this when it took the decision in July 2023 and again re-confirmed by an independent confirmatory due diligence conducted by Transnet,” stressed Madsen.

“Maersk’s definition of solvency is in fact so rigid that it would disqualify many blue-chip companies on the JSE and globally, including for instance Apple Inc, from winning the tender,” ICTSI claimed on Tuesday.

ICTSI has a global turnover of almost $2.4 billion (R41 billion) annually and operations in China, Brazil, the Philippines, Argentina, and Australia.

Reputational damage

“While the interdict against the partnership was granted against Transnet and not ICTSI, the global firm has asked for leave to appeal as findings made by the court are damaging to its reputation and have no basis in fact,” the company said.

“ICTSI is a publicly listed company, and unsupported findings have serious reputational and other consequences.”

“We respect the judicial process. However, we believe that there are critical issues that need further judicial scrutiny. We are confident that the appeal process will provide the opportunity to address these concerns,” said Madsen.

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