In the increasingly interconnected global landscape, it will often happen that legal entities and individuals engage with each other across numerous different jurisdictions, with each party possibly being in separate jurisdictions. A judgment that a party may obtain in its home jurisdiction, may amount to a hollow judgment when one considers that the opposing party may have no assets or presence in that jurisdiction.
In such an instance, entities may consider enforcing this judgment in a foreign jurisdiction. South Africa is an attractive option in such circumstances. As a constitutional democracy based on fairness and equity, judgments emanating from South Africa are globally respected and generally enforced. Moreover, South Africa has a lengthy history of recognizing foreign civil judgments.
Further, as an emerging market, South Africa is a melting pot for various interests. For instance, South Africa is a member of the BRICS organization; while at the same time, South Africa has strong trading ties with America and Europe. As such, numerous organizations and companies have a presence in South Africa – thus avoiding the difficulties associated with an empty judgment.
The enforcement of Foreign Civil Judgments Act 32 of 1988 provides some guidance with respect to the enforcement of foreign civil judgments; however, this act only applies to judgments emanating from Namibia. Judgments obtained outside of Namibia will be governed by South African common law.
Fortunately, the courts have developed basic requirements for the recognition and enforcement of a foreign civil judgments in South Africa. The locus classicus is the matter of Jones v Krog 1995 (1) SA 677(A) in which the following requirements were laid out by the court:
- The original court in which judgment was obtained, had jurisdiction;
- The judgment is final and conclusive in effect;
- The recognition and enforcement of the judgment would not be contrary to public policy in the South African context;
- The judgment was not obtained fraudulently;
- The judgment does not relate to the enforcement of penal or revue law of the foreign state; and
- The enforcement of the judgment is not precluded by the Protection of Businesses Act, 1978.
The aforementioned requirements are not cast in stone and the High Court of South Africa will need to apply its discretion on a case-by-case basis. In this respect, the court will have to consider South Africa’s constitutional and legislative framework and whether such foreign judgment aligns with the principles of South Africa’s constitutional democracy.
As is often the case, large multinational companies are not registered in the same jurisdiction where it contracts with other entities. Often these large entities are registered in obscure and remote nations. In such an instance, before enforcing the foreign civil judgment in South Africa, attachment of the entities property or assets will need to take place, in order to confer jurisdiction upon a South African court.
Ultimately, before deciding to enforce a foreign civil judgment in South Africa, one will need to consider whether the defendant has assets or a presence in South Africa and whether the original judgment can co-exist with the South African constitutional dispensation.
Pagel Schulenburg Incorporated recently attached the shares of Google South Africa (Pty) Ltd belonging to Google LLC and the trademarks of Google LLC, in order to found jurisdiction over Google LLC (a company registered in Delaware, United States of America) in South African Courts. You can read more of such attachment of the shares and trademarks of Google LLC here:
Should you wish to find out more regarding the enforcement of foreign civil judgments in South Africa, feel free to contact Pagel Schulenburg Attorneys.
