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• 5.1 Recognition And Enforcement Of Foreign Judgments
• 5.2 Service Of Documents
• 5.3 Evidence
• 5.4 Other Relevant Legislation

5. STATUTORY PROVISIONS

Various pieces of legislation regulate the enforcement of foreign judgments in South Africa. In most of these pieces of legislation there is provision for co-operation through the designation of foreign countries. There are other pieces of legislation providing for reciprocal service of documents and the taking of evidence for the purpose of civil proceedings. Each of these Acts is discussed briefly below.

5.1 Recognition and Enforcement of Foreign Judgments

(i) The Enforcement of Foreign Civil Judgments Act 32 of 1988 provides for the registration in a local Magistrates’ Court of judgments from certain courts in designated countries. A registered foreign judgment has the same effect as a civil judgment of the registering court and can be enforced as such.^[10]

The Act is silent on the issue of registration of foreign judgments by the High Court. Therefore, the registration and enforcement of foreign judgments by the High Court are done under the common law. Magistrates’ Courts have jurisdiction in matters up to R100 000 only. This means that all foreign money judgments in excess of R100 000 must be dealt with by the High Court under the common law.

This Act, unlike its predecessor, is not based on reciprocity. The Act applies only to money judgments. The following are but a few of the questions posed in relation to this Act:

Should the provisions of this Act be extended to the High Court in order to facilitate the registration of foreign money judgments in excess of

R100 000?

Is the current situation where the High Courts deal with enforcement of foreign judgments under common law principles, satisfactory?

In the United Kingdom there are three Acts governing the recognition and enforcement of foreign civil judgments. The Administration of Justice Act 1920 makes provision for the reciprocal enforcement within the United Kingdom of judgments obtained in superior courts of any part of the Commonwealth. The Foreign Judgments (Reciprocal Enforcement) Act 1933 makes provision for the registration of judgments emanating from Commonwealth countries^[11] as well as those from completely foreign countries. This Act reiterates the English common law position in respect of the recognition and enforcement of foreign civil judgments.

Both Acts are based on reciprocity and apply equally to foreign arbitral awards. They do not apply to matrimonial matters, administration of deceased estates, bankruptcy, winding up of companies, lunacy, or guardianship of infants. This is because such matters are not considered to be claims in personam.^[12]

The Civil Jurisdiction and Judgments Act 1982 provides for the reciprocal enforcement of judgments from States which are parties to the Brussels Convention.^[13] This Act implements the Brussels Convention^[14] and applies to money and non-money judgments.^[15]

In New Zealand the Reciprocal Enforcement of Judgments Act 1934 provides for the enforcement in New Zealand of judgments given in the United Kingdom or in other countries which afford reciprocal treatment to judgments given in New Zealand. The Act applies to both money judgments and non-money judgments. The Act does not apply to matrimonial matters, administration of deceased estates, insolvency, winding up of companies, lunacy, or guardianship of infants.^[16]

In Australia the relevant Act is the Foreign Judgments Act 1991. Similar to the Acts discussed above, this Act is based on reciprocity. The Act does not apply to matrimonial matters, administration of deceased estates, bankruptcy, insolvency, winding up of companies, mental health, or guardianship of infants.^[17] The Act applies to both money judgments and non-money judgments.

The New Zealand and Australian Acts are modelled on the United Kingdom legislation. The Acts also facilitate the enforcement of Australian and New Zealand judgments in other countries. This is achieved by providing for the Registrars of their courts to issue certified copies of judgments and certificates containing pertinent details of the judgments to judgment creditors.

It must be noted, however, that these Acts do not provide for the reciprocal service of legal documents.

The Hague Conference on the Recognition and Enforcement of Judgments in Civil and Commercial Matters^[18] provides for mutual recognition and enforcement of judicial decisions rendered in their respective countries. This convention does not enjoy much support. Only three states, namely, Cyprus, Netherlands and Portugal have ratified the convention. As between the Netherlands and Portugal the provisions of the Hague Convention have been replaced by those of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 1968.

(ii) The Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 provides for the reciprocal enforcement of maintenance orders made in South Africa and proclaimed countries. A maintenance order cannot be enforced under the common law because it is variable and is therefore not seen to be ‘final and conclusive’. The failure of the common law to make adequate provision for the enforcement of foreign maintenance orders led to the enactment of statutory mechanisms in this area. A maintenance order requires the periodical payment of sums of money. In this regard the aim of this Act bears some similarity to that of the Enforcement of Foreign Civil Judgments Act.

At a departmental workshop^[19] held by the Directorate of International Affairs it was concluded that there is no need to have the Reciprocal Enforcement of Maintenance Orders Act separate from the Foreign Civil Judgments Act 1988 since both Acts relate to civil judgments or orders.

The approaches of other countries in relation to the enforcement of foreign maintenance orders might provide assistance. For example, in the United Kingdom the reciprocal enforcement of foreign maintenance orders are dealt with separately from the reciprocal enforcement of foreign civil judgments. A foreign judgment, including a maintenance order, will not be recognised or enforced under the common law in England unless it is final and conclusive. This requirement is carried through in the Foreign Judgments (Reciprocal Enforcement) Act 1933.^[20] A maintenance order providing for the periodical payment of money is not seen to be ‘final and conclusive’ if it is variable by the court which pronounced it.^[21] This is why the 1933 Act could not be used for the recognition or enforcement of foreign maintenance orders. Since the common law could not be used either, other statutory means had to be devised to solve the problem.

The Maintenance Orders (Facilities for Enforcement) Act 1920 makes provision for the reciprocal enforcement in England and Northern Ireland of maintenance orders made in certain commonwealth countries overseas. The Maintenance Orders Act 1950^[22] provides for the reciprocal enforcement of maintenance orders within the United Kingdom. The Maintenance Orders (Reciprocal Enforcement) Act 1972 provides for the reciprocal enforcement of maintenance orders between the United Kingdom and certain countries outside the United Kingdom. The Civil Jurisdiction and Judgments Act 1982 provides for the reciprocal enforcement of maintenance orders in states which are parties to the 1968 Brussels convention.

A similar situation prevails in Australia and New Zealand. The international trend seems to be towards keeping maintenance matters separate from other civil matters.

In view of the above, the following are but a few of the issues which need to be addressed in relation to the South African legislation in this regard:

The second aspect revolves around the question whether South Africa should ratify any of the Hague Conventions dealing with the recognition and enforcement of maintenance obligations. There are two conventions in this area: one relates to maintenance obligations in respect of adults^[23] and the other relates to maintenance obligations in respect of children^[24]. These conventions have a fair amount of support amongst member states but almost no support amongst non-member states.^[25]

(iii) Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989 provides a procedure whereby maintenance orders made in African countries may be registered locally. The countries to which the Act is applicable are designated by the Minister of Justice and not by the President. The process is administrative and does not involve the use of diplomatic channels.

Only the formerly independent states of Transkei, Bophuthatswana, Venda and Ciskei were designated under the Act. Since these states are now once again part of South Africa the Act is, from a practical point of view, of no use.

It is possible that the Minister could designate more African countries, thereby facilitating co-operation amongst countries in Africa. The advantage of the Act is that it provides a simplified administrative process for the registration of maintenance orders made in African countries. It also provides for the registration and enforcement of provisional maintenance orders as well as the registration of emoluments attachment orders.

(iv) The Recognition and Enforcement of Foreign Arbitral Awards Act 40 of 1977 provides for the recognition and enforcement of foreign arbitration awards. Section 2 of the Act provides that an arbitration award may be made an order of court in any court and may be enforced in the same manner as any judgment or order to the same effect.

In 1976 South Africa became a party to the Convention on the Recognition and Enforcement of Foreign Arbitrary Awards. Act 40 of 1977 was enacted to give effect to this accession. The Commission, in the course of its investigation into arbitration, found that this Act is seriously defective.^[26]

The six main criticisms levelled at the Act related to the definition of a “foreign arbitral award”; the failure to include an equivalent to article II of the New York Convention regarding the enforcement of arbitration agreements; problems with the wording of section 4 regarding the grounds for refusal of enforcement of foreign arbitral awards; the enforcement of awards in a foreign currency; the failure to make express provision for the recognition of foreign arbitral awards as opposed to their enforcement; and the wording of the Act which creates the impression that the grounds for refusal of enforcement of awards are not exhaustive and the court has a general discretion to refuse enforcement.^[27]

The Commission proposed a draft Bill on International Arbitration, which is expected to be enacted soon. The Bill implements the UNCITRAL^[28] Model Law on International Commercial Arbitration of 1985. The Commission recommended in its report that, because of the serious defects in the 1977 Act, it should be repealed and replaced by legislation forming part of a single statute which also enacts the UNICITRAL Model Law.^[29]

The Commission has been requested, as part of its current investigation, to consider incorporating the provisions of Act 40 of 1977 into the consolidated statute. The question is how this is to be achieved in view of the latest developments mentioned above.

5.2 Service Of Documents

(i) The Reciprocal Service of Civil Process Act 12 of 1990 provides for the reciprocal service of process in civil matters in South Africa and in designated countries. Under section 2(1) of the Act the former Republics of Transkei, Venda, and Ciskei were designated. These are no longer separate states and the designations are therefore no longer applicable.

This Act provides for the service in South Africa of process received from designated countries.^[30] It also provides for service in designated countries of process issued in South Africa.^[31] The procedure set out in the Act is cheaper and more expedient. The effectiveness of the Act is, however, hindered by the issue of designation of countries.

Although the Supreme Court Rules^[32] provide that no process or document whereby proceedings are instituted may be served outside the country without the leave of the court, the Reciprocal Service of Civil Process Act provides that in designated countries any process, other than a process relating to the enforcement of a civil judgment, may be issued by a registrar of any division of the High Court or by any clerk of the Magistrate’s Court without leave of the court.

Documents and processes relating to the enforcement of civil judgments are regulated by the Enforcement of Foreign Civil Judgments Act 1988 and the Foreign Courts Evidence Act 1962 and are therefore specifically excluded in section 4 of this Act.^[33]

The Hague Convention on the Service Abroad of Judicial and Extra-Judicial Documents in Civil or Commercial Matters applies to the service abroad of all judicial and extra-judicial documents in civil and commercial matters. ^[34] The convention does not apply in cases where the address of the person to be served with the document is not known. As at 23 August 2002 the Convention had been adopted by 39 member states. In addition to this, ten non-member states have also acceded. The main advantage of adopting this Convention is that it has wide support amongst member states.

5.3 Evidence

(i) The Foreign Courts Evidence Act 80 of 1962 provides for the obtaining of the evidence of witnesses in South Africa for use in civil proceedings in foreign countries. An order for the examination of a witness has to be granted by a Judge of the High Court in South Africa. Section 2 of the Act provides that such an order will not be granted if it appears to the judge that the evidence required is the furnishing of information in contravention of section 1 of the Protection of Businesses Act, 1978.^[35]

The Foreign Courts Evidence Act does not, however, make provision for the obtaining of evidence in foreign countries for use in civil proceedings in South Africa.

South Africa is a party to the Hague Convention on the Taking Abroad of Evidence in Civil or Commercial Matters.^[36] This convention aims to improve mutual judicial co-operation in civil or commercial matters and to facilitate the transmission and execution of Letters of Request. Currently there are 39 states which have become parties to this Convention.

5.4 Other Relevant Legislation

The effect of consolidation or reform of current legislation on the following Acts needs to be considered:

(i) The Magistrate’s Court Act 32 of 1944 provides a registration procedure for the enforcement of foreign judgments^[37]. Provision is made for a certified copy of a foreign judgment to be registered by the clerk of a magistrate’s court. Upon registration of the foreign judgment by the magistrate’s court, such judgment has the same effect as a civil judgment of the registering court.

(ii) The Supreme Court Act 59 of 1959 does not make provision for the enforcement of foreign judgments. Even the Enforcement of Foreign Civil Judgments Act 1988 is silent on the issue of registration of foreign judgments by the High Court. The High Court can, however, deal with the enforcement of foreign judgments under the common law. This may be the route to follow in cases where the amount of the judgment exceeds R100 000 as well as where the foreign country involved is not designated in terms of the Enforcement of Foreign Civil Judgments Act.

Even though the High Court can deal with the enforcement of foreign judgments under the common law, a statutory provision might prove less cumbersome, less expensive and less time-consuming.

Section 33(1) provides for the taking of evidence in South Africa upon request by a foreign country. The letter of request is transmitted to the registrar by the Director General: Justice. The registrar then submits it to a judge in chambers in order to give effect to the request. The purpose of a letter of request envisaged in this section is to extend the hearing before a foreign court to a hearing before a commissioner in South Africa. The evidence taken before the commissioner becomes part of the evidence before the foreign court.^[38] In effect South Africa merely lends its aid to the taking of evidence in the Republic for use in the foreign court.^[39]

Section 33(2) of the Act makes provision for the service of foreign civil process in South Africa. This is done upon request from a foreign country. The request is sent to the registrar of the court by the Director General. The registrar then arranges for service by the sheriff in accordance with the rules of court.

(iii) The Protection of Businesses Act 99 of 1978 stipulates that permission must be obtained from the Minister before foreign judgments, orders, directions, arbitration awards and letters of request connected with the mining, production, importation, exportation, refinement, possession, use, sale or ownership of any matter or material can be enforced in South Africa. This is aimed at preventing the recovery of excessive damages awarded in foreign courts to externally-based companies doing business with South African citizens.

In addition, the furnishing of information relating to any business, in compliance with such orders, directions, interrogatories, arbitration awards or letters of request constitutes a criminal offence.^[40]

The Act also prohibits the recognition and/or enforcement of foreign judgments in respect of multiple or punitive damages.^[41]

The Act has been severely criticised by Forsyth^[42] who states that the case for legislative reform in this area is overwhelming and that in the absence of legislative reform the refusal of permission by the Minister may give rise to constitutional issues concerning the denial of fundamental rights.^[43] Another problem posed by the Act is that having to obtain permission from the Minister leads to unnecessary delay.

Similar legislation has been enacted in other countries to protect local business entities from what is considered to be excessive jurisdiction exercised by foreign courts. In the United Kingdom the Protection of Trading Interests Act 1980 serves a protective function.^[44] In Australia the Foreign Proceedings (Excess of Jurisdiction) Act 1984 does the same.

^[10] Section 4(1).

^[11] Those Commonwealth countries which the Administration of Justice Act 1920 does not apply to.

^[12] Dicey and Morris The Conflict of Laws 13th edition London: Sweet & Maxwell 2000 (Volume 1) at 263.

^[13] Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 1968.

^[14] The Civil Jurisdiction and Judgments Act 1991 implemented the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 16 September 1988. The 1982 Act was then amended so as to refer to the Lugano Convention.

^[15] A non-money judgment is defined in the Civil Jurisdiction and Judgments Act 1982, schedule 7, para 1, as “any relief or remedy not requiring payment of a sum of money”.

^[16] Section 2(2) of the Act.

^[17] Section 3(1) of the Act.

^[18] Entered into on 1 February 1971.

^[19] Departmental Workshop on International Co-operation in Civil Matters, Pretoria, 3 November 1999. This workshop was attended by 25 participants, consisting of judges, magistrates, state attorneys and sheriffs.

^[20] Section 1(2)(a).

^[21] Dicey and Morris The Conflict Of Laws 13^th edition London: Sweet & Maxwell 2000 (Volume 1) at 477.

^[22] Part II of the Act.

^[23] Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations (1973).

^[24] Convention Concerning the Recognition and Enforcement of Decisions Relating to Maintenance Obligations Towards Children (1958).

^[25] Only one non-member state, Liechtenstein, has acceded to the Convention on the Maintenance of Children.

^[26] South African Law Commission Report on an International Arbitration Act for South Africa Project 94 July 1998 at 1.

^[27] South African Law Commission Report on an International Arbitration Act for South Africa Project 94 July 1998 at 110 .

^[28] United Nations Commission on International Trade Law.

^[29] South African Law Commission Report on an International Arbitration Act for South Africa Project 94 July 1998 at 111.

^[30] Section 3.

^[31] Section 4.

^[32] Rule 5 of the Supreme Court Rules.

^[33] Hansard Parliamentary Debates, 16 February 1990, col 1059-1060.

^[34] Entered into on November 15, 1965.

^[35] Discussed on page 15 of this paper.

^[36] Concluded on 18 March 1970.

^[37] Rule 43A of the Magistrates’ Courts Rules.

^[38] Saunders and Another v Minister of Justice and Others 1997 (3) SA 1090 (C) at1096.

^[39] Erasmus Superior Court Practice Juta: Cape Town 1994 at A1-90, A1-91.

^[40] Section 1(1)(b) read with Section 2 of the Act.

^[41] Section 1A of the Act.

^[42] C F Forsyth Private International Law 3^rd edition Cape Town: Juta 1996 at 404.

^[43] C F Forsyth Private International Law 3^rd edition Cape Town: Juta 1996 at 405 “...every person – including a plaintiff seeking to enforce a foreign judgment – has the right to...’procedurally fair administrative action where any of his or her rights [are] affected or threatened’. Moreover, such action affecting rights must be ‘justifiable in relation to the reasons given for it’ by the decision maker. Save in the most extreme case – for instance, where the enforcement of the foreign judgment would inflict substantial damage on the economy as a whole – and cases where the court would in any event refuse to enforce on public policy grounds, it is difficult to conceive of any constitutionally proper ground on which the Minister could refuse permission.”

^[44] Forsyth states at page 404 that the Protection of Trading Interests Act 1980 shows how the objectives of such legislation can be achieved without sacrificing all principles of law in this area to the Minister’s discretion.