Can Foreign Judgments Be Enforced in South Africa?

04 September 2023 ,  Lizanne Maritz 406

A judgment granted by a foreign court is not directly enforceable in South Africa but constitutes a prima facie proof of debt (the clearest possible proof of debt). One would still need to institute an action from the South African court based on the foreign judgment.

The Enforcement of Foreign Civil Judgments Act 32 of 1988 states that a judgment creditor may only have a judgment registered in a South African court if it is from a designated foreign state, and the procedure to enforce the judgment is only available to countries officially designated by the Minister of Justice. Unfortunately, Namibia is the only nation that the Minister of Justice named in the Act, hence any other nation's judgments must be enforced through a common law case. However, a High Court application may be filed to have a court judgment from another country replicated in South Africa. To have a foreign judgment reflected in South Africa, the following procedure must be followed:

1. An original certified copy of the foreign judgment must be transmitted from the concerned nation to the
relevant South African court, where it must be filed. The court's registrar is then required to notify the
defendant/respondent of the registration.
2. A judgment that has been registered will function in the same way as one that has been issued by a South
African court with the appropriate authority.
3. However, any appropriate execution of property will be postponed for 21 days so that the judgment debtor
can request to have the judgment set aside and attempt to question it on grounds that generally equate to
common law.

The grounds for this include the following:
a. The judgment was entered into the record in violation of the Act.
b. The circumstances of the case exclude the foreign court from having jurisdiction.
c. The judgment debtor was not provided notice of the court proceedings in which the judgment was
rendered.

There is another important principle to consider when dealing with foreign judgment in South Africa and that is prescription.

In this regard, it would be necessary to look at Section 11 of the Prescription Act 68 of 1969, which clearly addresses applicable prescription periods:
Normally, a judgment debt becomes unenforceable after 30 years due to prescription.
This, however, only applies to decisions made by South African courts, not those made by foreign courts.
In relation to a foreign judgment, the Prescription Act's Section 11(d) is applicable, which states: 
“11(d): save where an Act of Parliament provides otherwise, three years in respect of any other debt”.

In the case of Society of Lloyd's v Price 2005 (3) SA 549 (T), the court highlighted a provision regarding the prescription of foreign judgments for the purposes of South African Law. The court ruled that only judgments rendered by South African courts, and not judgments rendered by foreign courts, are subject to the provision that judgments become legally binding after 30 years under Section 11 of the Prescription Act.

Foreign judgments must typically be implemented within three (3) years in order to remain valid and enforceable under South African law; otherwise, they expire and cease to be so. The judgment will, however, still be valid and enforceable in the country of origin.

Due to this, you only have three years to get a judgment in a South African court, otherwise, the judgment creditor's rights under the terms of the foreign judgment would (in accordance with South African law) disappear and be obliterated.

WRITTEN BY LIZANNE SCHOLTZ
Lizanne Scholtz is a Candidate Attorney at Miller Bosman Le Roux Attorneys.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein.  Our material is for informational purposes.

Related Expertise: Debt Collection and Recovery
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