The implementation of foreign judgments in South Africa is regulated by two main authorities: the Enforcement of Foreign Civil Judgments Act (32/1998) (EFCJ) and common law principles.
Enforcement of Foreign Civil Judgments Act:
Under the EFCJ, applicable only to Namibia currently, the enforcement process involves a straightforward registration of the foreign judgment at the relevant Magistrates’ Court. However, as the minister of justice and constitutional development has designated only Namibia under this act, the enforcement of foreign judgments is predominantly governed by common law.
Common Law:
According to common law, foreign judgments can be enforced in either Magistrates’ Courts or High Courts, depending on the monetary value involved. Magistrates’ Courts handle cases where the judgment’s value is less than R400,000, while High Courts deal with judgments exceeding this amount. Determining the appropriate court for enforcement depends on various jurisdictional factors such as the defendant’s location.
The basic requirements for the recognition and enforcement of a foreign judgment in South Africa were established in Jones v Kork 1995 (1) SA 677 (A), which are:
- The foreign court must have had international competency (jurisdiction to hear the particular matter);
- The judgment must be final and conclusive;
- The judgment is not contrary to public policy, this includes observing natural justice which requires that the parties were given reasonable notice of the proceedings to make representations;
- The judgment will not be recognised if it was obtained fraudulently; and
- The judgment does not relate to the enforcement of penal or revue law of the foreign state.
In addition to the above, the court will need to satisfy itself that certain minimum standards of justice were observed by the foreign court, such as the audi alterum partem rule which enforces the principle that every natural person or legal entity must be afforded a fair hearing and the opportunity to respond to the claims and evidence levied against them.
Recognition and Enforcement:
Recognition and enforcement of foreign judgments are distinct legal concepts. Recognition entails acknowledging a foreign judgment’s validity without necessarily enforcing it, commonly seen when the defence of res judicata is invoked. Enforcement, on the other hand, involves obtaining a South African court order to compel action.
The process for enforcing foreign judgments differs under the EFCJ and common law. The EFCJ provides a relatively simple procedure, requiring registration at the Magistrates’ Court in the relevant district where the judgment debtor resides or holds assets. Once registered, the foreign judgment holds the same weight as a local civil judgment.
Under common law, the ease of recognition and enforcement varies based on the complexity of the case and other factors. While all foreign civil judgments are potentially enforceable, certain exclusions apply, such as judgments contrary to South African public policy or those involving penal or revenue laws of the foreign country.
Appeals:
Regarding appeals, under the EFCJ, execution of the judgment may be postponed if an appeal is pending or intended. At common law, the enforceability of a foreign judgment is unaffected by its appeal status. South African courts have discretion on whether to enforce a judgment subject to appeal, considering various factors including the judgment’s finality and practical implications.
In the case of Lindsey and Others v Conteh (774/2022) [2024] ZASCA 13 (6 February 2024), the appeal was dismissed as the foreign judgment did not meet the criteria for provisional sentence under South African law. The California court orders did not constitute a liquid document acknowledging an unconditional debt, thus not qualifying for enforcement through provisional sentences in South Africa.
Conclusion:
To enforce a foreign judgment, the foreign court must have had international competency, the judgment must be final and conclusive, and the judgment must not be contrary to public policy, for further guidance, individuals can contact Schoemanlaw Inc.
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