Originally from: Enforcement of Money Judgments - Looseleaf
Enforcement of Money Judgments - Electronic
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South Africa
I. PRESENT ATTITUDE TOWARDS 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);
Roger Wakefield, Werksmans Incorporated
