THE ENFORCEMENT OF FOREIGN JUDGMENTS IN THE REPUBLIC OF SOUTH AFRICA
Louis van Bergen
19 October 2018
The enforcement of foreign civil judgments in South Africa is generally governed by the Common Law and in limited instances by the Enforcement of Foreign Civil Judgments Act 32 of 1988 (“the Act”). The Act only applies to judgments obtained in Namibia, however this will not preclude Namibian judgments from being enforceable in terms of the Common Law. This article will consequently highlight the process of enforcing a foreign judgment as provided for by the common law in South Africa.
Foreign judgments are not directly registerable and enforceable in South Africa as in other jurisdictions. A foreign judgment is rather considered a cause of action that may be enforced by South African Courts upon the institution of action or application proceedings by the person seeking to enforce them.
In the event that a material dispute of fact is not anticipated the foreign judgment may be enforced on application to the High Court having jurisdiction. However, if a material dispute of fact is anticipated, action may be instituted by issuing a Provisional Sentence Summons. The said summons is a powerful tool at the disposal of the plaintiff as it essentially allows a plaintiff to obtain a provisional judgment against the debtor and requires the debtor to provide security of the judgment debt, failing which the provisional order may be made a final order such that it is enforceable against the debtor in terms of South African law. The resultant trial relates only to the requirements for enforcement and does not require the plaintiff to argue the merits of the case giving rise to the foreign judgment.
The requirements for enforcement of a foreign judgment in South Africa include the following:
- The foreign Court must have had the requisite jurisdiction to adjudicate the principle case. For example the judgment debtor must have been resident or, in the case of a company, have a registered office in the foreign jurisdiction at the commencement of the proceedings. Jurisdiction could also have been vested in the foreign court by agreement between the parties;
- The judgment must be final and not be subject to an appeal or have become superannuated;
- The enforcement must not be contrary to South African public policy. A judgment will be contrary to South African public policy if it was obtained by fraud or contradicts any legislation within the Republic;
- The relevant judgment must not be for penalties or fines imposed by a foreign state.
The fact that an application or action for enforcement is unopposed by the defendant does not guarantee success. Each application or action is adjudicated upon the facts before the Court and success or failure thereof will depend largely on compliance with the above requirements. Although the process may seem daunting, with the right legal guidance it is generally uncomplicated to enforce a foreign judgment in South Africa.