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4. THE COMMON LAW POSITION

In terms of the modern Roman-Dutch common law a foreign judgment will be recognised if :

(i) it emanated from a foreign court which had international jurisdiction according to South African law;

(ii) it is final;

(iii) it is not contrary to public policy (the judgment must not have been obtained fraudulently or without observance of the rules of natural justice nor must it be for the enforcement of a foreign revenue or penal law);

(iv) enforcement is not prohibited by the Protection of Businesses Act 99 of 1978.

A foreign judgment is not directly enforceable but constitutes a cause of action which will be enforced by South African courts.^[8] In other words, a foreign judgment may be enforced by an ordinary action. Provisional sentence may be granted on foreign money judgments.

The problems with the common law procedures^[9] are that they are expensive, time-consuming and complex. In response to this the legislature enacted legislation to facilitate the enforcement of foreign judgments.

^[8] Jones v Krok 1995 (1) SA 677 (A) at 685B.

^[9] Provisional sentence, default judgment and declaratory orders.