South Africa: Recognition & enforcement of foreign civil money judgments (“foreign judgment”) in the Republic of South Africa (“RSA”).

South Africa

Recognition & enforcement of foreign civil money judgments (“foreign judgment”) in the Republic of South Africa (“RSA”).

1) INTRODUCTION

A foreign judgment is not directly enforceable in the RSA and consti-tutes a cause of action that can be enforced by a RSA court. It is gov-erned generally by common law and in spe-cific instances by stat-ute such as the Enforce-ment of Foreign Civil Judgments Act 32 of 1988 (the "Act").

2) COMMON LAW ENFORCEMENT

2.1 In terms of the com-mon law, the foreign judgment may be en-forced by an action/ application. The amount of the foreign judgment and internal jurisdiction rules will determine whether the High or Magistrate’s Court is to be approached and which particular division of that court.

2.2 The requirements to enforce are as follows:

2.2.1

The foreign court must have been inter-nationally competent, i.e. it must have exercised jurisdiction on grounds that RSA courts regard as appropriate;

2.2.2

have been final and conclusive;

2.2.3

not have been fraudu-lently obtained or be contrary to natural justice or public policy;

2.2.4

not have lapsed or have been satisfied;

2.2.5

not have been based on a foreign penal, revenue or public law; and

2.2.6

conform to the require-ments of the Protection of Businesses Act 99 of 1978.

2.3 A duly authenticated copy of the foreign judgment is required and if done by way of application, a duly authenticated affidavit will be required.

2.4 A RSA court can grant the judgment in a foreign currency and may be satisfied in the RSA by payment in a foreign currency or by payment of its equivalent in South African Rand. A RSA court will enforce any foreign interest rate awarded and any foreign judgment costs.

2.5 Once a foreign judg-ment is recognised by the RSA court, the judg-ment creditor is entitled to issue a writ of exe-cution against movable property.

3) ENFORCEMENT VIA THE ACT

3.1 The Minister of Justice must designate foreign countries to which the Act applies. Only one country, Namibia, has been designated so far.

3.2 The Act provides that final judgments enforce-able by execution in the foreign country may be enforced. The only court provided with this statu-tory jurisdiction in RSA is the Magistrate’s court and the foreign judgment is limited to that court’s jurisdiction of ZAR 300 000.

3.3 A copy of the foreign judgment certified by the proper officer of the foreign court as a true copy is required.

3.4 The certified copy of the foreign judgment is registered by the clerk of the RSA court for the equivalent South African Rand value calculated at the exchange rate at the date of the foreign judg-ment together with interest and the costs of the registration in the RSA.

3.5 The foreign judg-ment is binding and take effect as a civil judg-ment of the RSA.

3.6 A notice to the judg-ment debtor is issued and served by a court official. It operates as an interdict not to remove or dispose of assets that would prejudice the execution of the judgment.