The enforcement of foreign judgements in South Africa – September 2014

South Africa is not party to any treaty regarding the reciprocal enforcement of foreign commercial judgments, as opposed to foreign arbitral awards (it is party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards).

South African courts will however enforce a foreign judgment if certain common law requirements are met-

• Firstly, the foreign judgment must be final in the sense that it must not be capable of alteration by the foreign court which pronounced it. If an appeal has been noted, a South African court may, at its discretion, decide whether or not to enforce the judgment or to stay the enforcement proceedings pending the outcome of the appeal. In exercising its discretion, a South African court will have regard to the question of whether the foreign judgment is enforceable in its own jurisdiction pending an appeal;
• The foreign court must have had international competence. This is a jurisdictional requirement under South African law and means simply that –
  • the defendant must have been present in the area of the foreign court’s jurisdiction at the commencement of the action; or
  • the defendant must have been resident in the area of the foreign court’s jurisdiction at the commencement of the action (a corporation is resident where it is registered or where it has its principal place of business); or
  • the defendant must have submitted to the jurisdiction of the foreign court either directly (for example, in terms of an express submission in a contract) or by conduct, (for example, by defending the action in the foreign court).
• Thirdly, enforcement of the foreign judgment must not be contrary to South African public policy or to the rules of natural justice. This includes the requirement that the tribunal must have been impartial and that a defendant should have had due notice of the proceedings against him. Punitive awards are regarded as contrary to South African public policy;
• Lastly the foreign judgment must not fall foul of s1 of the Protection of Businesses Act 99 of 1978. Section 1(1) read with s1(3) provides as follows (paraphrased)-

Except with the permission of the Minister of Trade and Industry, no judgment, order, direction, arbitration award given or issued or emanating from outside the Republic in connection with any act or transaction which took place at any time whether before or after the commencement of this Act, and which is connected with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership of any matter or material, of whatever nature, whether within, outside, into or from South Africa.

•  The wording of the section is extremely wide and at first blush seems to affect almost every foreign judgment. Fortunately our courts have construed the statute narrowly and have restricted the requirement for ministerial consent to judgments arising from transactions concerning raw materials. In such cases ministerial consent is readily granted.
• A foreign judgment represents a cause of action on its own. The procedure for enforcement therefore entails either an application to court on motion in the case where no disputes of fact are anticipated, or by way of trial action where a dispute of fact is anticipated which can only be resolved through the hearing and testing of oral evidence. Most often a dispute of fact will relate to the question of whether the defendant submitted to the jurisdiction of the foreign court.
• A South African court will not re-examine the merits of a case in respect of which a foreign judgment was granted. In other words, a South African court will not sit as a court of appeal on the foreign judgment. The defendant in opposing enforcement is limited in his defences to the requirements for enforcement.

Published 3 September 2014