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Enforcing A Foreign Civil Judgment In A South African Court

Enforcing A Foreign Civil Judgment In A South African Court

Enforcing a Foreign Civil Judgment In a South African Court

If you’ve been granted a Judgment in a Foreign Court (outside the borders of South Africa) and you’re now in South Africa and wish to have it enforced by a South African Court, do it as soon as you possibly can or it could prescribe (expire).

This applies to Divorce Orders, Maintenance Orders and any other Orders handed down by a Foreign Court.

In a recent case I dealt with, a Divorce Order, incorporating a Maintenance Order was granted in 2010 out of a U.S. Court. In 2014 the Applicant, while staying in the U.S. had attempted to enforce the Foreign Judgment against her Husband, who lives in South Africa. This was 4 years after the fact. In terms of South African Law, her Judgment, including her Order for Maintenance had prescribed.

The lesson to be learned from this is that if you obtain a Judgment in a Foreign Country against someone who is residing within South African Borders, then you must take immediate action to get a Judgment in a South African Court in order to enforce your rights in terms of that Foreign Judgment.

For a South African Court to enforce a Judgment made by a Foreign Court, you will need a certified copy of the Judgment from the Court from where it was issued.

The Enforcement of Foreign Civil Judgments Act 32 of 1988, applies only to enforcement proceedings in the Magistrates’ Courts, where the financial limit on actions is R300 000.

Any Foreign Judgment in excess of this amount must be enforced in the High Court, where the procedure is governed by the common law. The Act makes provisions for a procedure specifically designed to reduce the time and costs involved in the common-law action.

However, the procedure to enforce the Judgment is only available to countries specially designated by the Minister of Justice and the Act itself provides that a Judgment creditor may have a Judgment registered in a South African Court only if it is from a from a designated Foreign State.

Sadly, the sole country that the Minister of Justice designated in the Enforcement of Foreign Civil Judgments Act 32 of 1988 is Namibia, with the result that Judgments emanating from any other country must be enforced under the Common law action.

Nevertheless, an Application can be lodged in the High Court to make a Court Foreign Judgment from another Country mirrored in South Africa.

The process that must be followed to have a Foreign Judgment mirrored in South Africa is as follows:

  • An original certified copy of the Foreign Judgment will have to be sent from the Country in question and then it must be lodged with the Registrar of the relevant South African Court, who is then obliged to issue a notice to the Defendant/Respondent informing him/her of the registration.
     
  • A registered Judgment will have the same effect as a Judgment issued by a South African Court with competent jurisdiction.
     
  • However, any applicable execution of property will be delayed for 21 days, during which time the Judgment Debtor may apply to have the Judgment set aside and he/she may attempt to impugn the Judgment on grounds broadly corresponding to the common law.
     
  • The grounds for this includes the following:
     
  • The Judgment was registered in contravention of the Act; 
  • The Foreign Court has no jurisdiction in the circumstances of the case; 
  • The Judgment Debtor did not ‘receive notice of the proceedings in which the Judgment was given; 
  • Or the enforcement would be contrary to South African public policy; so, until such time as the Enforcement of Foreign Civil Judgments Act 32 of 1988 is extended to apply to more countries, the Common law action will remain as the only method for enforcing a Foreign judgment, the only exception being Child maintenance, where the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 would apply; 
  • In addition, registration of a Foreign Judgment operates only prospectively. Hence, a Judgment Creditor cannot recover any arrears of Maintenance incurred before registration of the Order in South Africa; 
  • Nevertheless there does lurk a danger when dealing with matters of this nature – that danger being prescription; 
  • In this respect, Section 11 of the Prescription Act 68 of 1969, which deals specifically with applicable prescription periods, would need to be examined. 

 

In terms of Section 11:

  • A normal Judgment debt prescribes after 30 years, after which it is no longer enforceable;
     
  • However, this only applies to Judgments in a South African Court and not Judgments of a Foreign Court;
     
  • With regards to a Foreign Judgment, Section 11(d) of the prescription act applies which states:
     

“11(d): save where an Act of Parliament provides otherwise, three years in respect  of any other debt”.

This issue was raised in the matter of Society of Lloyd’s v Price 2005 (3) SA 549 (T), where the Court emphasised a little known rule in relation to the prescription of Foreign Judgments for the purposes of South African Law. The Court stated that the rule that Judgments prescribe after 30 years in terms of Section 11 of the Prescription Act only applies to Judgments of a South African Court and not a Judgment of a Foreign Court.

Under normal circumstances, so far as South African law is concerned, Foreign Judgments must be acted upon within three (3) years; otherwise they lapse and will no longer be enforceable in South Africa. However this does not mean that the Judgment is not still enforceable in its Country of Origin

Due to this you only have three (3) years to obtain a Judgment in a South African Court and if no action to do so is taken within this period, then the Judgment Creditor’s rights in terms of the Foreign Judgment will (for the purposes of South African law) prescribe and thus be extinguished.

The smart thing is to take a copy of the Foreign Civil Judgement to your South African Attorneys and let them do it all for you. We often handle this type of matter.

Clinton Rademeyer
Attorney