South Africa - Enforcement of Money Judgments
Roger Wakefield, Werksmans Incorporated
Originally from Enforcement of Money Judgments
I. PRESENT ATTITUDE TOWARD ENFORCEMENT OF FOREIGN MONEY JUDGMENTS
A. Describe the receptiveness of your government (including courts) toward enforcement of foreign money judgments.
South Africa is not party to any treaty regarding the reciprocal enforcement of foreign commercial judgments, as opposed to foreign arbitral awards.
South African Courts will enforce a foreign money judgment if certain requirements based largely on the Roman-Dutch common law, are met. There is one statute, the Protection of Businesses Act, 99 of 1978, which applies to certain foreign money judgments if they arise from a list of defined transactions dealing mainly with the mining or production of raw materials. Any such judgments require ministerial consent before a court will enforce them. This piece of legislation, which has been the subject of much comment (most of it adverse), was enacted chiefly to protect South African companies from American antitrust legislation and judgments comprising a punitive damages element arising from it.
The Act is couched in very wide language but South African courts have tended to give it a restricted interpretation. In practice the relevant minister rarely declines to provide permission for enforcement.
A foreign judgment, therefore, is not directly enforceable in South Africa but constitutes a cause of action which will be enforced by South African courts if the following requirements are met (as affirmed in the leading case on the subject, Jones v Krok 1995 (1) SA 677 (A)):
(1) the foreign court must have had international competence as determined in terms of South African law;
(2) the judgment must be final and must not have become superannuated;
(3) the enforcement of the judgment must not be contrary to South African public policy (which includes the rules of natural justice);
(4) the judgment must not have been obtained by fraudulent means;