Enforcement of judgments in South Africa: overview

A Q&A guide to enforcement of judgments law in South Africa.

The Q&A gives a structured overview of key practical issues concerning enforcement of judgments in this jurisdiction, including definitions and preliminary proceedings; applicable regulations/conventions; pending appeals; enforceable judgments; conditions for recognition and enforcement; proper service; public policy; provisional remedies; interest; actual enforcement; enforcing foreign judgments; enforcement proceedings; formalities; and any reform proposals.

This Q&A is part of the Enforcement of Judgments and Arbitral Awards in Commercial Matters Global Guide.

Patrick Holloway and Andre October, Webber Wentzel
Contents

Enforcement of judgments: domestic and foreign

Definitions and preliminary proceedings

1. What is the definition of judgment in your jurisdiction for the purpose of enforcement proceedings?

Domestic

The word "judgment" generally includes the reasons for a decision reached by a court, the decision itself and any order made under it. It also includes a decision given on a summons for a provisional sentence.

A judgment is a decision based on the law and evidence presented to a court. It can be distinguished from an order in that it is the decision of the court in response to the relief claimed in an action. An order, on the other hand, is the decision of a court in response to relief claimed in an application or some other procedure during the course of a trial (Pete, Hulme, Du Plessis, Palmer and Sibanda, Civil Procedure, A Practical Guide, 2011 (Second Ed), page 267 and Cilliers page 912 citing Dickenson v Fisher's Executors 1914, AD at 427).

Not every decision or ruling of a court during proceedings amounts to an order. The term implies that there must be a distinct application by one of the parties for definite relief.

International

South African law has no clear definition of what constitutes a foreign/international judgment.

Under the Enforcement of Foreign Civil Judgments Act 32 of 1988 (Enforcement of Foreign Civil Judgments Act) "judgment" is defined as any final judgment or order for the payment of money given or made by any court in any civil proceedings which is enforceable by execution in the country in which it was given or made.

It does not include any judgment or order given or made by any court on appeal from a judgment or order of a court, other than a court as defined in the Enforcement of Foreign Civil Judgments Act. Neither does it include the payment of any tax or similar charge, or of any fine or other penalty, nor the periodical payment of sums of money paid towards a person's maintenance.

 
2. Is it required that a judgment is final and has conclusive effect, or are decisions in preliminary/provisional/interim proceedings recognised and enforceable?

Domestic judgments

Final decisions. Domestic judgments have to be final and have conclusive effect to be enforceable. There are exceptions in relation to certain preliminary/provisional/interim proceedings which are dealt with below.

Preliminary/provisional proceedings. Decisions in preliminary/provisional/interim proceedings are recognised and enforced by courts. Interim remedies include:

  • Interim interdict.

  • The writ of mandamus.

  • Anton Piller order.

  • Mareva injunction

  • Applications to the High Court to enforce compliance with the High Court Rules.

  • Provisional sentence summons.

  • Summary judgments.

  • Applications to strike out.

Foreign judgments

Final decisions. South African courts will only recognise and enforce final and conclusive foreign judgments. The general rule is that the foreign judgment must be unalterable.

A preliminary or provisional judgment, or one that has been suspended pending an appeal, is not enforceable.

In Jones v Krok 1995 (1) SA 677 (A), the court held that a foreign judgment will be regarded as final even though the judgment is subject to appeal, or even if an appeal is pending, provided it is final and conclusive in all other respects. In this case, the court also confirmed that a South African court, when asked to enforce a foreign judgment that is subject to appeal, or if an appeal is pending, enjoys a discretion and can choose to stay the proceedings pending final determination of the appeal, rather than giving judgment in favour of the claimant (Cilliers page 1358).

Where enforcement is sought of a foreign judgment subject to an appeal, the following principles apply (Cilliers page 1359):

  • The fact that the judgment is subject to appeal does not affect its finality, provided it is in all other respects final and conclusive.

  • Where it is shown that the judgment is subject to appeal, or that an appeal is pending, the court in South Africa has a discretion to stay the proceedings pending final determination in the foreign jurisdiction.

  • The onus of proving that the judgment is final and conclusive rests on the party seeking to enforce it. Where this onus has been discharged, the defendant must prove relevant facts relating to the pending appeal to persuade the court to exercise its discretion in favour of granting a stay of proceedings.

  • In exercising its discretion, the court can take into account all relevant circumstances, including whether:

    • Whether an appeal is actually pending.

    • Whether the defendant is pursuing the appeal genuinely and with due diligence, and the consequences to the defendant if judgment is given in favour of the claimant and the appeal succeeds in the foreign jurisdiction.

  • The court will refuse, as a rule, to assess the merits of the appeal and its prospects of success in the foreign court.

In Blanchard, Krasner & French v Evans 2004 (4) SA 427 (W) the court suggested that a common sense test, rather than rigid rules, ought to be applied when examining whether a foreign judgment is final or not. The court stated that "it would appear arbitrary to say that the possibility of rescission of a default judgment precludes it from being final, however remote the prospects of success may in fact be."

A judgment is deemed to be final, even if an appeal is pending or the time for filing an appeal has not yet expired (section 7, Enforcement of Foreign Civil Judgments Act).

Applicable regulations/conventions

3. What conventions and regulations is your jurisdiction a contracting party to?

South Africa is party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention).

 
4. Will enforcement be automatically refused if service of the proceedings did not conform to any applicable requirements of international treaties/regulations?

No. Provided the proceedings have been brought to the attention of the defendant, it will be assumed that there has been service.

Pending appeals

5. What is the effect of pending appeal proceedings where the decision is granted?

Domestic judgments

Once leave to appeal has been granted, execution of the judgment is suspended (South Cape Corp Pty Ltd v Engineering Management Systems Pty Ltd and section 18, Superior Courts Act No 10 of 2013).

Foreign judgments

South African courts will only recognise and enforce final and conclusive foreign judgments, provided it is unalterable.

A preliminary or provisional judgment, or one that has been suspended pending an appeal, will not be enforceable.

In Jones v Krok, the court held that a foreign judgment will be regarded as final even though the judgment is subject to appeal, or even if an appeal is pending, provided it is final and conclusive in all other respects. In this case, the court also confirmed that a South African court, when asked to enforce a foreign judgment that is subject to appeal, or if an appeal is pending, enjoys a discretion and can choose to stay the proceedings pending final determination of the appeal, rather than giving judgment in favour of the claimant(Cilliers page 1358).

Where enforcement of a foreign judgment subject to an appeal is sought, the following principles apply (Cilliers page 1359):

  • The fact that the judgment is subject to appeal does not affect its finality, provided it is in all other respects final and conclusive.

  • Where it is shown that the judgment is subject to appeal, or that an appeal is pending, the court in South Africa has a discretion to stay the proceedings pending final determination in the foreign jurisdiction.

  • The onus of proving that the judgment is final and conclusive rests on the party seeking to enforce it. Where this onus has been discharged, the defendant must prove relevant facts relating to the pending appeal to persuade the court to exercise its discretion in favour of granting a stay of proceedings.

  • In exercising its discretion, the court can take into account all relevant circumstances, including whether an appeal is actually pending, whether the defendant is pursuing the appeal genuinely and with due diligence, and the consequences to the defendant if judgment is given in favour of the claimant and the appeal succeeds in the foreign jurisdiction.

  • The court will refuse, as a rule, to assess the merits of the appeal and its prospects of success in the foreign court.

In Blanchard, Krasner & French v Evans 2004 (4) SA 427 (W) the court suggested that a common sense test, rather than rigid rules, ought to be applied when examining whether a foreign judgment is final or not. The court stated that: "it would appear arbitrary to say that the possibility of rescission of a default judgment precludes it from being final, however remote the prospects of success may in fact be."

A judgment is deemed to be final, even if an appeal is pending or the time for filing an appeal has not yet expired (section 7, Enforcement of Foreign Civil Judgments Act).

Enforceable judgments

6. What types of judgments in commercial matters are enforceable?

Domestic judgments

Money judgments/awards. Money judgments and awards are enforceable.

Judgments ordering or prohibiting the doing of acts/injunctions. These are enforceable if the person against whom the order has been granted, resides in, works in, or is currently in South Africa.

Declaratory judgments. The purpose of a declaratory order is to state the rights and duties (or their absence) of certain persons without reference to enforcement (Forsyth, Private International Law, Fifth Edition (2012), page 270).

A provincial or local division has jurisdiction over all relevant persons and offences within its area and also has discretion to enquire into and determine any existing, future or contingent rights or obligations, even where it is not possible for a person to claim any relief on the determination (section 19(1)(a)(iii), Supreme Court Act).

Default judgments. These are enforceable when a writ of execution is issued.

Judgments made without notice (ex parte)/awards. If a court is satisfied that no other rights will be affected, the court will grant a final order. If the application affects the rights of the eventual respondent, the court will issue a rule nisi calling on the respondents to show (by the return date) why an order should not be granted. Sometimes the applicant will require relief before the return date in which case he will ask the court to order temporary relief, including giving interim effect to the final order sought. This means that the order sought will operate against the respondent until the return date (Pete, Hulme, Du Plessis, Palmer and Sibanda, Civil Procedure, A Practical Guide, 2011 (Second Ed), page 138).

Foreign decisions granting provisional measures. These judgments are not enforceable. The foreign judgment must be final.

Foreign enforcement orders/(pre-judgment) attachment orders/awards. These judgments are not enforceable. The foreign judgment must be final.

Other judgments. Not applicable.

Foreign judgments

Money judgments/awards. Money judgments/awards are enforceable.

Judgments ordering or prohibiting the doing of acts/injunctions. These are enforceable if the person against whom the order has been granted, resides in, works in, or is currently in South Africa.

Foreign decisions granting provisional measures. A provisional judgment is not enforceable because of the requirement that to be enforceable a judgment must be final and conclusive.

Declaratory judgments. The purpose of a declaratory order is to state the rights and duties (or their absence) of certain persons without reference to enforcement (Forsyth, Private International Law, Fifth Edition (2012), page 270).

A provincial or local division has jurisdiction over all relevant persons and offences within its area and also has discretion to enquire into and determine any existing, future or contingent rights or obligations even where it is not possible for a person to claim any relief on the determination (section 19(1)(a)(iii), Supreme Court Act).

Default judgments. Default judgments will generally be accepted as enforceable where the defendant failed to apply for rescission of the judgment within the time limits of the court granting the judgment (but note the approach suggested by the court in the case of Blanchard, Krasner & French v Evans in Question 5).

Ex parte judgments/awards. Generally enforcement will not be ordered because to do so would be contrary to public policy.

Foreign enforcement orders/(pre-judgment) attachment orders/awards. These are generally not enforceable. However, it is possible to obtain an order from a South African court for the arrest in rem of property within that court's jurisdiction, as security for foreign proceedings, provided that the requirements for obtaining an arrest order are met (section 5(3), Admiralty Jurisdiction Regulation Act No 105 of 1983 (the Admiralty Act)).

Other judgments. A foreign arbitral award can be made an order of court and enforced, provided that the matter is arbitrable in South Africa. Awards not included as arbitrable are matrimonial cases or matters relating to status.

Any judgment or arbitration award relating to a maritime claim (whether given or made in South Africa or elsewhere) constitutes a "maritime claim" (section1(1) paragraph (aa), Admiralty Act). Such a claim can be enforced by an action in rem against the ship concerned or an "associated ship".

 
7. Are any class of judgments excluded from recognition and enforcement?

Domestic judgments

Cognovit proceedings (a judgment entered after a written confession by the defendant without a trial) are considered contrary to public policy and are not enforceable.

Foreign judgments

The following foreign judgments are not recognised or enforced in South African courts:

  • Judgments that provide for the payment of punitive or revenue damages.

  • Judgments granting preliminary or provisional judgments, or those that have been suspended pending appeal (as the foreign judgment must be final and conclusive).

  • Penal judgments.

  • Judgments relating to immovable property in South Africa.

  • Judgment following cognovit proceedings.

A foreign warrant of execution will not be enforceable unless the warrant and judgment are the equivalent of a judgment under South African law.

Conditions for recognition and enforcement

8. What are the conditions to enforce and recognise a judgment?

Domestic judgments

Court/arbitral court had jurisdiction. The guiding principle is that the court will not exercise jurisdiction unless effect can be given to the judgment (Forbes v Uys 1911 AD 295 at page 346). The magistrate's court has jurisdiction over matters involving claims up to ZAR400,000 while the High Courts have jurisdiction to hear any claims greater than this amount.

Defendant had proper notice of the proceedings. When proceedings have begun without due notice to the defendant, they are null and void. Any judgment in such proceedings has no force and effect and can be disregarded without a formal order setting it aside (Rule 4, Uniform Rules).

No incompatibility with public policy. Courts will not enforce the provisions of an act or the bringing of an action which is contrary to public policy.

Reciprocity. Where a contract contains reciprocal obligations, it is basically a matter of interpretation as to whether the obligations are so closely linked that the reciprocity principle applies. If there is no other intention, the principle applies by operation of law to certain well known contracts, such as contracts of sale and contracts of service (BK Tooling (EDMS) BPK v Scope Precision Engineering (EDMS) BPK 1979 (1) SA 391 (A) 1979 (1) SA page 391).

No conflicting domestic or foreign judgment exists. A judgment cannot be in conflict with the judgment of a higher domestic court.

Judgment/award is final as to its effects. This is enforceable unless subject to appeal.

Limitation period. Three years after a judgment expires, no writ of execution can be issued unless the debtor consents or unless the judgment is revived by the court on notice to the debtor (in which case no new proof of the debt is required) (Rule 66, Uniform Rules of Court). Where the judgment is for periodic payments, the three year period runs, in respect of any payment, from the date on which it falls due (Cilliers, Volume 1 (5th ed) page 945).

Other conditions. Not applicable.

Foreign judgments

In Jones v Krok the court set out requirements for enforcing a foreign judgment. In broad terms the requirements for a monetary claim are:

  • The foreign court must have international jurisdiction or competence within the meaning of that term under South African law.

  • The foreign judgment must:

    • be final and conclusive in its effect and not have expired;

    • not have been obtained fraudulently;

    • not be contrary to South African public policy;

    • not seek to enforce a penal or revenue law of another state; and

    • not be precluded by the provisions of the Protection of Businesses Act 99 of 1978.

Court/arbitral court had jurisdiction. A South African court will not pronounce on the merits of any issues of fact or law tried by a foreign court and will not review or set aside its findings. It will, however, adjudicate on a "jurisdictional fact" establishing international competence. If a foreign court does not have the requisite international jurisdiction or competence when giving judgment, a South African court will refuse to recognise and enforce that judgment.

The fact that a foreign court has jurisdiction under its own law does not guarantee that it has international jurisdiction according to South African law and does not per se entitle a foreign court's judgment to be recognised and enforced in South Africa (Reiss Engineering Co Ltd v Isamcor (Pty) Ltd 1983 (1) SA 1033).

A foreign court will generally have international jurisdiction or competence if at least one of the following requirements is satisfied:

  • The defendant was resident within the area of the foreign court's jurisdiction at the start of the action.

  • The defendant had submitted to the jurisdiction of the foreign court either by conduct or by agreement.

  • The defendant was present within the jurisdiction of the foreign court at the start of the action.

Defendant had proper notice of the proceedings. A foreign judgment will not be recognised and enforced in South Africa if the defendant was not given proper notice. This is against public policy.

No incompatibility with public policy. Foreign laws "repugnant" to public policy, or in conflict with the principles of natural justice, will not be applied in South Africa (Forsyth, Private International Law, Fifth Edition (2012), page 460).

A foreign judgment will only be recognised and enforced in South Africa, if:

  • It is impartial.

  • The defendant received due notice of the proceedings.

  • The defendant was given the opportunity to represent his case.

Inconsistency with a South African regulation does not, per se, render the foreign judgment unenforceable. A foreign judgment must violate a fundamental policy of South African law for it to be unenforceable (Taylor v Hollard 1986 (2) SA 78).

Reciprocity. Reciprocity is not a requirement for the enforcement of a foreign judgment in South Africa.

No conflicting domestic or foreign judgment exists. There is no rule under common law for deciding whether the court should give overriding effect to an earlier or later judgment.

A foreign judgment cannot be enforced in South Africa if it conflicts with a judgment already given elsewhere (section 5(1)(g), Enforcement of Foreign Civil Judgments Act). The exception is Namibia, where a judgment can be enforced by registering it with a South African court.

Judgment/award is final as to its effects. South African courts will only recognise and enforce final and conclusive foreign judgments, with the general rule being that the foreign judgment must be unalterable.

In Jones v Krok, the court held that a foreign judgment will be regarded as final even though the judgment is subject to appeal, or even if an appeal is pending, provided it is final and conclusive in all other respects. In this case, the court also confirmed that a South African court, when asked to enforce a foreign judgment that is subject to appeal, or if an appeal is pending, enjoys a discretion and can choose to stay the proceedings pending final determination of the appeal, rather than giving judgment in favour of the claimant.

Limitation period. Three years after a judgment expires, no writ of execution can be issued unless the debtor consents or unless the judgment is revived by the court on notice to the debtor (in which case no new proof of the debt is required) (Rule 66, Uniform Rules of Court). Where the judgment is for periodic payments, the three year period runs, in respect of any payment, from the date on which it falls due (Cilliers, Volume 1 (5th ed) page 945).

Other conditions. The foreign judgment must not have been obtained fraudulently. South African courts will not recognise or enforce foreign judgments obtained through any kind of fraud (Jones v Krok).

The applicant must have complied with the provisions of the Protection of Businesses Act. The Protection of Businesses Act restricts the enforcement of certain judgments, orders, directions, arbitration awards, interrogatories, commission rogataire, letters of request or any other request delivered, given or issued or emanating from outside South Africa in connection with civil proceedings, by providing that they are not enforceable without the consent of the Minister of Trade and Industry. These orders are widely defined as those which had been handed down in connection with the mining, production, importation, exportation, refinement, possession, use or sale of or ownership to any material, of whatever nature, whether within, outside, into or from South Africa. In practice, the Minister's consent is rarely withheld.

 
9. What are the grounds for refusing recognition and enforcement?

Domestic judgments

Once judgment has been delivered, the judgment creditor requests the registrar to issue a writ of execution under which it can instruct the sheriff to attend at the defendant/debtor's premises to demand payment. If not appealed, the judgment is final and the creditor is entitled to execution of the judgment.

Foreign judgments

The court will of its own accord refuse to recognise any judgment which it does not consider to be compliant with the conditions for enforcement.

Arbitral awards

There are several notional defences to the recognition and enforcement of a foreign arbitral award which could theoretically be raised either by the court on its own initiative, or by a defendant.

The court can, of its own initiative, refuse to recognise an award and order its enforcement if the subject matter of the dispute is not arbitrable under South African law and if its enforcement would be contrary to public policy.

A court will of its own accord refuse to recognise any judgment which does not comply with the conditions for enforcement (section 4, Foreign Arbitral Awards Act). These conditions are that:

  • A reference to arbitration is not permitted due to the subject matter of the dispute.

  • Enforcement of the award would be contrary to public policy.

  • The party against whom enforcement of the award is sought proves to the court that:

    • the parties to the arbitration agreement had no capacity to contract, or that the agreement is invalid under the law to which it is subject or of the country in which the award was made;

    • one party did not receive the required notice of the appointment of an arbitrator or of the arbitration proceedings or was otherwise not able to present his case;

    • the award deals with a dispute not contemplated by or falling within the scope of arbitration, or that it contains decisions on matters beyond the scope of arbitration. If the decisions on matters referred to arbitration can be separated from those not referred, that part of the award containing the arbitration decision can be made an order of court;

    • either the constitution of the arbitration tribunal or the arbitration proceedings were not in accordance with the relevant arbitration agreement or with the law of the country in which the arbitration took place; or

    • the award is not yet binding on the parties, or has been set aside or suspended by a competent authority in the country where, or under the law of which, the award was made.

Proper service

10. Does the enforcing court review service of the proceedings? Are there any conditions regarding service of the proceedings that must have been satisfied/complied with?

Domestic judgments

South African courts review service of the proceedings. Whenever a court is not satisfied with the effectiveness of service it can order further steps to be taken (section 4(10), Supreme Court Act 59 of 1959). The fundamental rule is that the court must be satisfied that the defendant or respondent has received the documents and is aware of the legal proceedings. The general requirements for service are contained in the Uniform Rules of Court and include:

  • Who is to serve the documents.

  • The time of service.

  • Dies induciae (whether there should be a delay to allow performance of a legal obligation).

  • The manner of service.

Foreign judgments

The court will examine the criteria (see Question 8, Foreign Judgments) and will only look at the method of service if the issue is raised by the defendant.

Litigation cannot be instituted against an absent defendant who has not been informed of the proceedings. Provided the proceedings have been brought to the attention of the defendant, it will be assumed that there has been service.

There is no specific requirement about the method of service in the country where the judgment or award was rendered when enforcement of the foreign judgment is sought against a defendant domiciled in South Africa. The rules of natural justice require that the defendant be given due notice of the proceedings against him. Any judgment rendered contrary to this rule of natural justice will be neither recognised nor enforced.

A foreign judgment must violate a fundamental policy of South African law for that judgment to be unenforceable (Taylor v Hollard 1886 (2) SA 78).

Public policy

11. Does public policy include matters of substantive law?

It is contrary to public policy to enforce a foreign judgment where there has been a failure of natural justice. The court has held that the fact that a judgment is given on an incorrect view of the law or where the facts are in a wide sense unjust, would not per se amount to a failure of natural justice (Lissack v Duarte 1974 (4) SA 560 (N). The court stated further that the term "natural justice" refers to procedure rather than to the merits of a particular case.

 
12. Can the application of a law that is different to that applicable under the choice of law rules of the enforcing court be attacked on the basis of public policy?

This would be an issue to be taken up on appeal to the court which handed down the judgment or award. The decision would not amount to a failure of natural justice and would not be contrary to public policy.

 
13. In what circumstances and against which judgments has the principle of public policy generally been applied?

The court has held that natural justice bears its normal meaning and requires that "the hearing" should take place before an impartial tribunal, that the defendant should have due notice of the proceedings against him and that he should have an opportunity to present his case. South African courts will not recognise or enforce a judgment obtained by fraud (Jones v Krok 1995 (1) SA 677 (A)).

The court held, in Lissack v Duarte 1974 (4) SA 560 (N) that more than bare notice be given to the defendant and that the defendant had been unfairly deprived of the opportunity of presenting his side of the case.

In Taylor v Hollard (1886) 2 SAR the court found that a judgment on a grossly extorting contract should be refused recognition, since the courts were not bound to enforce foreign judgments which violated the policy of South African law.

Provisional remedies

14. Is it possible to apply for provisional measures from the enforcing court pending the enforcement proceedings?

Domestic judgments

Courts are empowered to grant interim relief by, for example, prohibiting a party from performing a certain act until judgment has been given in that particular litigation. Courts can also grant orders for the attachment of property to found or confirm jurisdiction. This is an application in and of itself.

Applications can also be brought under ongoing litigation (interlocutory applications). These can be divided into interlocutories (which have a final and definitive effect on the main action) and simple or proper interlocutory orders (which do not dispose of any point in issue).

Foreign judgments

It is not possible to request provisional measures from the enforcing court.

Interest

15. Is the judgment creditor entitled to interest? If so, on what basis is it calculated?

Domestic judgment

The judgment creditor is entitled to interest at the prescribed rate under the Prescribed Rate of Interest Act, which is currently 9% per year.

Foreign judgment

A South African court will enforce any foreign interest rate awarded.

Actual enforcement

16. What is the enforcement procedure when a declaration of enforceability is granted?

Domestic judgments

Enforcement for various classes of property is regulated by the rules of court, statutes and by judicial authority. Once judgment is granted, a writ of execution is issued by the registrar of the applicable court and the sheriff is commanded to serve the writ on the judgment debtor. The sheriff then demands satisfaction of the writ and, failing satisfaction, demands that enough movable and disposable property be pointed out so he can satisfy it. Failing this, he can search for property to satisfy the writ.

Foreign judgments

Once judgment is obtained, the judgment creditor is entitled to attach and to sell the debtor's property (whether movable, immovable or incorporeal). This is done by obtaining a writ of execution, which is issued by the court and which will be enforced by service of it by a sheriff of the court.

Debts can also be attached and the court can order the periodic deduction of a specific sum of money from a person's salary to be paid to the judgment creditor.

 
17. Can defendants oppose the enforcement procedure, and if so, on what grounds/defences?
Domestic judgments

Domestic judgments

In some circumstances a judgment creditor's right to execute his judgment against the debtor's property can be stayed pending either an appeal, an interpleader suit or promulgation of legislation. At common law, execution of all judgments is suspended on lodging an appeal for the purpose of preventing irreparable damage to the judgment debtor.

The trial court is usually empowered to exercise discretion when ordering execution of a judgment which has been appealed against, subject to security being provided. The Constitutional Court has stated that it is generally not in the interests of justice to appeal against interim execution orders. The grounds for granting leave to appeal are whether the applicant has satisfied the court that there is a reasonable prospect of the appeal succeeding, and whether the matter is of substantial importance for the appellant or for the appellant and respondent (Pete, Hulme, Du Plessis, Palmer and Sibanda, Civil Procedure, A Practical Guide, 2011 (Second Ed), page 312).

Foreign judgments

A writ of execution will be set aside if:

  • The judgment was not definite and certain.

  • The debt in respect of which the judgment was obtained was extinguished before judgment.

  • The judgment has been extinguished by compensation or novation.

  • The judgment on which the writ is based has been rescinded.

  • The writ erroneously refers to a certain person as a party.

  • The writ is no longer justified by the cause or debt.

 

Enforcing foreign judgments

Jurisdiction

18. Is the enforcing court entitled to consider the grounds on which the foreign court assumed jurisdiction (and if so, on what jurisdictional grounds can enforcement be refused)?

The enforcing court is entitled to consider the grounds on which the foreign court assumed jurisdiction. It can adjudicate on a "jurisdictional fact" establishing international competence. If the foreign court does not have the requisite international jurisdiction or competence when giving judgment, a South African court can refuse to recognise and enforce that judgment.

A foreign court will generally have international jurisdiction and competence if (Reiss Engineering Co Ltd v Isamcor (Pty) Ltd 1983 (1) SA 1033):

  • The defendant was resident within the area of the foreign court's jurisdiction at the time the action was started.

  • The defendant had submitted to the jurisdiction of the foreign court by conduct or by agreement.

  • The defendant was present within the jurisdiction of the foreign court when the action was started.

 
19. If the foreign court assumed jurisdiction on the basis of an exorbitant ground of jurisdiction, can the enforcing court review the judgment on that ground?

Exorbitant ground of jurisdiction

A court cannot review the judgment, but will not enforce it.

The following are not sufficient grounds for international competence:

  • Where the defendant is domiciled within the foreign court's jurisdiction at the time the action was started. There is currently no case law in favour of domicile as a ground for international jurisdiction.

  • Where the defendant was a national of the state of a foreign court at the time the action was started.

  • Where the foreign court attached the defendant's property to found its own jurisdiction.

Voluntary acknowledgement

The outcome is different if the defendant submitted to the foreign court's jurisdiction. In South Africa submission by conduct is not readily inferred. The general rule used to determine whether a person submitted to the jurisdiction of a court through conduct is whether the conduct was "of such a nature that the court is able to say that it is consistent with acquiescence" (Du Preez v Phillip-King 1963 (1) SA 801 (W)).

Appearance before a foreign court (whether conditional or otherwise) does not constitute submission to that court's jurisdiction if the appearance was for one or more of the following purposes (section 1E(1)(a), Protection of Business Act):

  • To contest the jurisdiction of the court.

  • To protect or to obtain release of any property attached for the purpose of the proceedings or when threatened with attachment in those proceedings.

  • To apply to the court not to exercise its jurisdiction.

  • Where an application is made to the court for a finding that jurisdiction should not be exercised by that court because the matter should be referred to arbitration or to a court in another country.

Enforcement proceedings

20. Is the enforcement of a foreign judgment, arbitral award or deed subject to formal proceedings or simplified procedures?

Foreign judgments can be enforced through an action. A provisional sentence will be granted on money judgments. This is an extraordinary and speedy procedure which is available to a claimant who has liquid documentary proof of his claim against the defendant.

Foreign arbitral awards can be enforced through an action and provisional sentence where appropriate, or by way of application proceedings on notice of motion supported by affidavit.

 
21. Are applicants required to institute a new action on the judgment in the form of main proceedings instead of making an application for enforcement based on the judgment?

It is not necessary to institute a new action based on the original cause of action. Although not directly enforceable, a foreign judgment constitutes a cause of action that will be enforceable by South African courts.

 
22. What is the general outline of enforcement proceedings?

Appointing counsel

A client must instruct an attorney who, in turn, will instruct an advocate to move the application.

Security for costs

No security for costs is necessary.

Jurisdiction and venue

Action can be taken in any South African court, provided that the defendant is resident in the court's jurisdiction or the defendant's assets are situated there.

The Recognition of Foreign Judgments Act only applies to enforcement proceedings in the magistrates' courts where the financial limit on actions is ZAR400,000.

Foreign judgments in excess of ZAR400,000.00 must be enforced in the High Court.

Adversarial or without notice (ex parte)

The enforcement proceedings are adversarial.

Timing

A provisional sentence or other application hearing will take place ten court days after service of the summons, if it is undefended. If it is defended and classified as semi-urgent, it will be heard between one and three months after summons. For normal cases, a hearing usually takes between four and six months.

Fees

No court fees are applicable but there are costs involved in the sheriff serving the summons or application papers on all parties affected.

Appeals

There is no single rule governing the appeal of decisions on provisional sentence matters in the High Court. The grant of a provisional sentence judgment is generally not appealable (Avtjoglou v First National Bank of Southern Africa Ltd 2004 (2) SA 453 (SCA)).

 
23. Can the enforcing court review the foreign judgment as to its substance if all formalities were complied with and if the judgment meets all requirements?

In general, if the foreign judgment satisfies the necessary requirements, a South African court will not reconsider its merits. There are two exceptions to this rule (Forsyth, Private International Law, Fifth Edition (2012), page 438).

  • Where there is an allegation of fraud.

  • Where there is a flaw in the foreign judgment that nullifies it.

Formalities

24. What are the documentary requirements for enforcement?

Documentary requirements

The original judgment or a certified copy of it.

For arbitral awards, the original foreign arbitral award and the original arbitration agreement under which the award was made, or certified copies of the award and the agreement.

Authentication

All foreign documents must be authenticated under the Uniform Rules of Court. A judgment is authenticated by a properly authorised officer attesting to its form under law. Rule 63 of the High Court Rules lays down the procedure for the proper authentication of documents.

Documents executed in the United Kingdom, Zimbabwe, Lesotho, Botswana and Swaziland can be authenticated by a notary public. If a document is executed anywhere else in the world, it must be authenticated by one of the following:

  • The head of the South African diplomatic or consular mission or a person in the administrative or professional division of the public service serving as a South African diplomatic, consular or trade officer abroad.

  • A consul-general, consul, vice-consul or consular agent of the United Kingdom or anyone acting in any of those capacities or a pro-consul of the United Kingdom.

  • Any government authority charged with the authentication of documents under the law of that foreign country.

  • Any person certified by any of the people above or any diplomatic or consular officer of that country in South Africa.

 
25. Is it required to translate the judgments into the language of the State where enforcement is requested?

Translations

A judgment must be translated, unless it is in English or Afrikaans.

If an arbitration award or agreement is in any language other than one of the official languages of South Africa, it must be accompanied by a sworn translation into one of the official languages (section 3(b), Recognition of Foreign Arbitral Awards Act).

Other languages

There are 11 official South African languages. These include Sepedi, Sesotho, Sitswani, siSwati, Tshivenda, Xitzonga, Afrikaans, English, isiNdelbele, isiXhoza and isiZulu. In practice, court proceedings are almost exclusively in English and Afrikaans.

Certification

All court judgments must be certified.

Arbitral awards require sworn translations to be authenticated in the same way as foreign documents to enable them to be produced in any court (section 3(b), Recognition of Foreign Arbitral Awards Act).

 
26. What is the format of the application for a declaration of enforceability?

For judgments, the claimant must use a provisional sentence summons to begin a provisional sentence procedure.

For arbitral awards, the notice of motion must be supported by a founding affidavit as well as any necessary supporting affidavits.

 
27. What information must be included in the application regarding the judgment, the claim as awarded in the judgment, the facts and legal grounds of the case, and that the judgment is no longer appealable?

Judgment

A judgment must confirm that it was made under the relevant foreign law and that it is final, and not an interlocutory or provisional judgment.

Claim as awarded

The application must contain information regarding the claim as awarded in the judgment.

Facts and legal grounds

The application does not have to contain information relating to the facts and legal grounds of the case.

Appeals

The application papers must contain a reference to the effect that the foreign judgment was made under foreign law and that it was final judgment (not interlocutory or provisional).

The application papers must also state that the foreign judgment satisfies all the requirements for recognition and enforcement.

 
28. Is it required to convert the value of the judgment into the local currency?

Judgments

A South African court has the power to grant a judgment in a foreign currency. According to common law, if an original judgment was in a foreign currency and the court decides that it is to be enforced in South African rand, then conversion must be made at the date of payment.

Arbitral award

A foreign arbitral award ordering money to be paid and expressed in a foreign currency must first be converted to rand for it to be enforceable in South Africa. The award must be made an order of court as if it were an award for payment of the equivalent amount in rand, on the basis of the exchange rate prevailing at the date of the award and not at the date of the order of enforcement (section 2(2), Recognition of Foreign Arbitral Awards Act).

Maritime awards

In the exercise of its admiralty jurisdiction, a court can order payment in a currency other than rand if appropriate and make an order as to when the currency conversion should take place (section 5(2), Admiralty Act).

It has been suggested that the general rule should be that in contractual claims the creditor should be paid in the currency for which it contracted, and that in delictual claims the claimant should be compensated for its loss in the currency in which the loss is suffered (Hofmeyr, Admiralty Jurisdiction Law and Practice in South Africa, Second Edition at page 239).

Proposals for reform

29. Are any changes to the law currently under consideration or being proposed?

No.

 

Contributor profiles

Patrick Holloway, Partner

Webber Wentzel

T +27 21 431 7278
E patrick.holloway@webberwentzel.com
W www.webberwentzel.com

Professional qualifications. Lawyer, Postgraduate Diploma (Shipping), University of Cape Town, 1996

Areas of practice. Shipping, marine insurance and transport.

Non-professional qualifications. LLB, University of Cape Town, 1990; BA, University of Cape Town, 1987

Andre October, Associate

Webber Wentzel

T + 021 431 7350
E andre.october@webberwentzel.com
W www.webberwentzel.com

Professional qualifications. Lawyer, Postgraduate Programme in Advanced Marketing Management, University of South Africa, 1998

Areas of practice. Shipping, marine insurance and transport.

Non-professional qualifications. LLB, University of South Africa, 2011; BSocSci (Economics and Industrial Sociology), University of Cape Town, 1994


{ "siteName" : "PLC", "objType" : "PLC_Doc_C", "objID" : "1248256513501", "objName" : "Enforcement of judgments in South Africa overview", "userID" : "2", "objUrl" : "http://us.practicallaw.com/cs/Satellite/us/resource/0-619-5567?null", "pageType" : "Resource", "academicUserID" : "", "contentAccessed" : "true", "analyticsPermCookie" : "2-3b01f5d1:15b0b2dd987:-459d", "analyticsSessionCookie" : "2-3b01f5d1:15b0b2dd987:-459c", "statisticSensorPath" : "http://analytics.practicallaw.com/sensor/statistic" }