Challenges in enforcing foreign judgments in SA

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This article evaluates a recent enforcement question that was considered by the Supreme Court of Appeal (SCA).

Established legal position

In 2006, the SCA in Richman v Ben-Tovim [2006] emphasised that the exigencies of international trade and commerce required that final foreign judgments ought to be recognised, as far as reasonably possible and practical, by South African courts, and that effect should be given to them. Since then, in recognising and enforcing foreign judgments, our courts have adopted a common sense and realistic approach when assessing and applying the jurisdictional requirements that typically need to be met under South Africa’s common law.

Now, in 2024, in a world of prolific international commerce and increased mobility of commercial actors, it is clear that the recognition and enforcement of foreign judgments remains a matter of significant commercial importance – both from an economic and a legal standpoint. Notwithstanding the increasingly pragmatic approach taken by South African courts, attempts to enforce foreign judgments in South Africa can easily come unstuck.

As a general rule, under South African law foreign judgments are not directly enforceable but rather constitute a cause of action in terms of which enforceability must still be adjudicated by our courts. However, certain exceptions do exist where foreign judgments can be enforced without full adjudication. A notable example is the enforcement of a money judgment based on a liquid document by way of a provisional sentence.

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A provisional sentence is a well-established remedy in South African law that allows a creditor in possession of a liquid document to obtain relief without the need for lengthy and costly trial proceedings. The document in question must be:

• a written instrument,
  
• signed by the debtor,
  
• that unconditionally acknowledges indebtedness for a fixed amount of money, and
  
• which has an amount or value that is evident on the face of the document itself.

South African law recognises that a court judgment serves as prima facie proof of a debt due and an acknowledgement of indebtedness for the amount sought. On this basis, final money judgments from a foreign jurisdiction are increasingly enforced by our courts by way of provisional sentence proceedings.

Assessment of judgments sounding in money by the SCA in Lindsey and Others v Conteh

In Lindsey and Others v Conteh [2024], the SCA considered a set of inter-related judgments and writs of execution granted by the Superior Court of California, in which the appellants had sought to enforce against the respondent, Alieu Conteh, who resided in Johannesburg.

In its first judgment, the California Court ordered Conteh to return shares in two foreign companies to the appellants. Conteh did not comply with this order, and the appellants could not execute against him, as he could not be located in California. Under the law of California, however, the first order could be executed ‘in the same manner’ as a money judgment and, accordingly, the California court granted a supplementary order attaching the value of the shares and authorised a writ of execution for this sum.

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Before the Johannesburg High Court, the appellants applied for provisional sentence in an amount equal to the value of the shares determined by the California court, contending that the various judgments and writs, taken together, constituted a liquid document on which provisional sentence could be obtained in South Africa. The High Court, however, found that the California orders did not comprise a money judgment – even though, under the law of California, the California Court orders were capable of enforcement as a money judgment.

While the SCA’s reasoning differed from that of the High Court, it ultimately agreed with the High Court’s decision that provisional sentence could not be granted, and the appellants’ appeal was therefore dismissed. On the SCA’s reasoning, the various judgments and writs simply did not constitute a liquid document in South Africa and once that was so, provisional sentence could not be granted.

The SCA considered whether, even if the orders of the California court were not money judgments, there was any reason why the enforcement of these orders as money judgments in terms of the law of California should not be recognised in South Africa. In answering this question, the SCA noted that a South African court will not generally apply foreign rules of procedure in the exercise of its own adjudicative function. South African courts, it said, are not merely instruments by which the laws of other countries secure the enforcement of their court orders; the processes of other courts do not run through the territory of South Africa.

Conclusion

Where there is a possibility that an order sought in another jurisdiction will need to be enforced in South Africa, our courts’ requirements for enforcing foreign judgments (as set out in the seminal case of Jones v Krok [1995]) should be kept front of mind when litigating in that jurisdiction. This is to ensure that any judgment obtained is not rendered hollow through an inability to have such judgment recognised, and ultimately enforced, in South Africa.