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3. THE NEED FOR REVIEW OF LEGISLATION

Co-operation between South Africa and foreign states in civil matters is an area where there have been no recent significant developments. The present position is that, subject to certain statutory exceptions, a foreign judgment is not directly enforceable in South Africa.

South Africa is part of the global business community. International co-operation in civil matters is very important in the light of our trade and other relations with foreign states. Globalisation and the rapid growth of international trade mean that cross-border disputes are inevitable. This in turn raises issues of jurisdiction of courts and the recognition and enforcement of foreign judgments by courts.

There are various pieces of legislation^[2] providing for international co-operation in civil matters. This is achieved by way of designation of countries under the different pieces of legislation. To date only a few states have been designated for the purpose of co-operation in civil matters. Given the fact that South Africa is a member of many international organisations, there is a dire need to review the area of international co-operation.

The necessary laws exist in our statute book but do not seem to be achieving their purpose. The first possible reason is that there are currently too many statutes governing this area, thereby complicating rather than facilitating the process of enforcement of foreign judgments. The second reason is that the relevant Acts operate on the basis of designation of countries. The Acts therefore apply only to such designated countries.

In respect of judgments relating to money, Namibia is the only country designated under enabling regulations as a country with reciprocal enforcement procedures. The result is that statutory enforcement in South Africa has limited scope. From a practical point of view, common law enforcement seems to be the only method of enforcement currently available.

The same situation prevails in respect of the enforcement of other types of civil judgments such as maintenance orders. Only a few countries have been designated in terms of the Reciprocal Enforcement of Maintenance Orders Act.^[3] The Act therefore applies only to such designated countries. The Enforcement of Foreign Civil Judgments Act^[4] cannot be used to enforce a foreign maintenance order because the definition of a judgment in that Act specifically excludes “the periodical payment of sums of money towards the maintenance of any person”.^[5] The common law does not offer a solution in maintenance matters. Orders for future maintenance are not recognised under the common law because such maintenance orders are not regarded as final.^[6] This ultimately means that most foreign maintenance orders cannot be enforced in South Africa.

The reciprocal service of judicial process is hindered by the same obstacle of designation. Only a few countries have been designated under the relevant Act.^[7]

^[2] Enforcement of Foreign Civil Judgments Act 32 of 1988; Reciprocal Enforcement of Maintenance Orders Act 80 of 1963; Recognition and Enforcement of Foreign Arbitrary Awards Act 40 of 1977; Reciprocal Service of Civil Process Act 12 of 1990; Foreign Courts Evidence Act 80 of 1962; Reciprocal Enforcement of Maintenance Orders (Countries in Africa) Act 6 of 1989.

^[3] Act 80 of 1963.

^[4] Act 32 of 1988.

^[5] Section 1.

^[6] One of the common law requirements for recognition and enforcement of a foreign judgment is that the judgment must be a final judgment.

^[7] Reciprocal Service of Civil Process Act 12 of 1990.