The Enforcement of Foreign Judgments in South Africa
By Carl Coetzee
As cross-border trade and international legal disputes become increasingly prevalent, the enforcement of foreign judgments in jurisdictions such as South Africa has become integral to international legal practice.
South African law does not automatically recognise foreign judgments; instead, enforcement is generally governed by established common-law principles that impose specific legal requirements on the judgment creditor. A clear understanding of these requirements – and the practical obstacles they may entail – is essential for parties seeking to enforce foreign court decisions within South Africa.
For a foreign judgment to be recognised and enforced by a South African court, several conditions must be satisfied, as follows:
the foreign court must have had jurisdiction to adjudicate the matter according to the principles accepted by South African law, with reference to the jurisdiction of the foreign court;
the foreign judgment must be final in effect and must not be superannuated;
recognition and enforcement of the foreign judgment must not contravene South African public policy;
the foreign judgment must not have been obtained by fraud;
it must not constitute the enforcement of a penal or revenue law of the foreign state; and
enforcement of the foreign judgment must not be precluded by the provisions of the Protection of Businesses Act 99 of 1978.
Although these principles are well established, their application is highly fact-dependent and frequently contested. As a result, even seemingly straightforward enforcement matters may become heavily litigated and procedurally complex. Considerations and hurdles include:
unique preliminary steps such as authentication and certification of the foreign judgment in question;
challenges to the foreign court’s jurisdiction (particularly in circumstances where the defendant has no presence in the foreign country concerned and where the parties’ commercial relationship is ambiguous as regards consent to jurisdiction);
the propensity of defendants to attempt to relitigate the matter in the South African forum (which is impermissible);
traversing principles of natural justice, South African public policy and constitutional considerations (which require nuanced and specialist understanding and application);
taking into account prescription principles and prescription timelines within the context of such enforcement proceedings; and
administrative and procedural delays which are germane, and which impede recovery and execution efforts and erode value (these delays may stem from overburdened court systems, bureaucratic inefficiencies, or the need for additional processes to trace and attach assets).
Proactive measures may however assist in minimising (or even eradicating) certain of these obstacles. For instance:
parties may consider making provision for an appropriate alternative dispute resolution regime (such as arbitration) in the underlying commercial agreement which governs their commercial relationship;
the arbitration contemplated may take the form of international commercial arbitration;
in terms thereof, a plaintiff may be able to bypass conventional litigation in the foreign territory and thereby avoid common law foreign judgment enforcement proceedings in South Africa; and
instead, enforcement proceedings could be instituted in South Africa under the auspices of the International Arbitration Act 15 of 2017 (which provides for a more streamlined enforcement procedure).
Ultimately, the successful recognition and enforcement of foreign judgments in South Africa require a forward-looking, strategically informed approach that anticipates legal, procedural, and practical complexities.