THE ENFORCEMENT OF FOREIGN CIVIL JUDGMENTS IN SOUTH AFRICA
As a firm which deals with many multi-national corporations and individuals as partners, we are often approached with a query relating to whether foreign civil judgments can be enforced in South Africa. Whilst the simple answer is yes, in reality the most accurate answer is ‘it depends’.
The enforcement of foreign civil judgements in South Africa is regulated by the Enforcement of Foreign Civil Judgements Act 32 of 1998 (“the EFCJ Act”) as well as the Common Law. Given that the EFCJ Act is only applicable to countries which have been designated by the Minister of Justice and Constitutional Development, which to date only includes Namibia, in practice the enforcement of foreign civil judgments are almost exclusively governed by the Common Law.
In terms of the Common Law, both the Magistrate’s Court and the High Court have jurisdiction to entertain the enforcement of foreign civil judgments as long as the judgment amount falls within the monetary jurisdiction of each court.
When facing the potential enforcement of foreign judgments, our offices apply a three-pronged approach to the matter, namely:
- Does the judgment constitute a foreign judgment?
- Is the judgment ‘enforceable’?
- Will the court make an order actually enforcing the judgment?
Given that our law has no clear definition as to what constitutes a ‘foreign judgement’, the Courts have taken the approach of applying the definition provided in the EFCJ Act (below) to make the determination:
‘any final judgement or order for the payment of money, given or made before or after the commencement of this Act by any court in a any civil proceedings or in respect of compensation or damages to any aggrieved party in any criminal proceedings and which is enforceable by execution in the country in which it was given or made…’
The second hurdle which one is required to consider is whether the foreign judgment you seek to enforce in South Africa is an ‘enforceable’ judgment. The general principles relating to which types of foreign judgments are ‘enforceable’ were established in the Zweni v Minister of Law and Order (1993 (1) SA 523 (A)) case which stated the following:
- The decision must be of final effect and not susceptible to alteration by the Court of first instance.
- The decision must be definitive of the rights of the parties.
- The decision must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings.
Once you have applied the aforementioned principles and established that the judgment is indeed a ‘foreign judgment’ and ‘enforceable’ by nature it is now important to establish whether the court will make an order to actually enforce the same in South Africa. Whilst each matter has its own merits and therefore the challenges and circumstances surrounding the enforcement of each foreign civil judgment differs on a case-by-case basis, the requirements for enforcing foreign civil judgements was clarified in the Jones v Krok 1995(1) SA 677 9(A) case, which stated as follows:
- the foreign court must have been ‘internationally competent’, which means that it must have had jurisdiction to entertain the initial matter;
- the foreign judgment must have been final and conclusive;
- the foreign judgment must not have been fraudulently obtained or be contrary to our ideas of natural justice or public policy;
- the foreign judgment must not have lapsed or have been satisfied;
- the foreign judgment must not have been based on a foreign penal, revenue or public law; and
- the foreign judgment must conform to the requirements of the Protection of Businesses Act 99 of 1978; and
- the foreign judgment must not be contrary to public policy.
If we have applied our three-pronged approach and determined that the foreign civil judgment is capable of enforcement in South Africa, the matter will proceed in terms of the normal rules and procedures which govern civil litigation in the country.
In conclusion, if you or your corporation is in a situation where you have obtained a foreign judgment against a debtor and that debtor is currently situated in South Africa, it does not automatically mean that you have no prospect of making a meaningful recovery. Before allowing the matter to die its own natural death, we suggest arranging a consult with us in order for us to evaluate your prospects and put forward a suitable plan of action.