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6. EFFECTIVE LEGISLATION

It is evident from the discussion above that South Africa currently has many Acts dealing with foreign judgments. The ideal situation would be to have a uniform Act which facilitates international co-operation in civil matters. This would be in line with the approach to international co-operation in criminal matters.^[45] The consolidated Act should deal extensively with the recognition and enforcement of foreign judgments, whilst protecting the interests of South African citizens. The legislation ultimately proposed must be effective in achieving its objectives.

An important issue for consideration is whether consolidation is the route to follow. The advantages of one comprehensive and all-encompassing Act, as opposed to various Acts dealing with exclusive areas, must be explored. One advantage of a single Act is that it provides for ease of reference. The legislation pertaining to international co-operation in civil matters would be easily accessible to both domestic and foreign users. This is especially important in the context of foreign users.

Another very important issue, regardless of whether there is a consolidation or not, is whether international co-operation should be based on reciprocity. At this point it might be useful to point out that in the past the requirement of reciprocity proved detrimental to South Africa’s efforts to facilitate the recognition and enforcement of foreign civil judgments.

The Reciprocal Enforcement of Civil Judgments Act 9 of 1966, which was intended to facilitate the recognition and enforcement of foreign civil judgments, was founded on reciprocity. South Africa was, however, unable to conclude mutually acceptable agreements with foreign governments. This fact was largely, if not solely, responsible for the failure to bring the1966 Act into operation. The Act never came into operation and was subsequently repealed by the Enforcement of Foreign Civil Judgments Act 32 of 1988

In relation to the above, the following issues must be addressed :

Is consolidation of legislation advisable to facilitate international co-operation in civil matters?

Should the consolidated Act be based on reciprocity?

If not, what criteria should be used to determine which foreign countries the consolidated Act should apply to?

Alternatively, should South Africa recognise and enforce civil judgments emanating from all foreign countries?

It is suggested that the issues raised in this paper should serve as a catalyst for the raising of other issues relevant to the investigation. Respondents are accordingly invited to indicate whether there are other issues to be explored. All issues raised will have to be debated thoroughly before any particular approach is adopted.

^[45] International Co-operation In Criminal Matters Act 75 of 1996.