Gabelsberger and Another v Babl and Another

• Jurisdiction: South Africa
• Citation: 1994 (2) SA 677 (T)

Gabelsberger and Another v Babl and Another
1994 (2) SA 677 (T)

1994 (2) SA p677

Citation	1994 (2) SA 677 (T)
Case No	18084/91
Court	Transvaal Provincial Division
Judge	van Dijkhorst J
Heard	October 29, 1993
Judgment	November 4, 1993

Flynote : Sleutelwoorde B

Practice — Judgments and orders — Foreign judgment — Recognition of — Recorded settlement in German Court — Plaintiffs entitled to execute thereon in terms of German Civil Procedural Code as effectively as if it had been a judgment — Effect the same as settlement made order of Court in C South Africa — In substance recorded settlement no different from order of Court upon which execution may be levied — No reason why foreign judgments made without determination of merits should be disregarded — Judgment granted on such recorded settlement.

D Practice — Judgments and orders — Foreign judgment — Recorded settlement in German Court — Such recognised by South African Court — Interest on amount payable — Debt bearing interest, in terms of German Civil Procedural Code, at 4% per annum from day after date of payment specified in settlement, ie 2 December 1980 — Interest in German law ancillary to E judgment ex lege — Court ordering defendants to pay interest at 4% per annum from 2 December 1980.

Headnote : Kopnota

The plaintiffs claimed judgment based on a recorded settlement in a German Court. Judgment was claimed in the amount of DM 69 000 plus interest at 4% per annum from 2 December 1980. It appeared that the parties had appeared F before a German Court in November 1980 and that a settlement was arrived between the parties in terms whereof (in translation) the 'defendants shall pay as settlement of all claims of the plaintiffs an amount of DM 69000 . . .' and that the 'amount is payable on or before 1 December 1980 . . .'. This settlement was recorded by the German Court. The terms of the settlement were followed by the words (in translation) 'Read and agreed upon'. The settlement was signed by the Chairman, the Vice-President of the Civil Court concerned and by the Court assistant. In terms of the G German Civil Procedural Code the plaintiffs were entitled to execute in the same manner and just as effectively as if it had been a judgment given after a full hearing of the case. The defendants contended that the recorded settlement was not a foreign judgment as the German Court had not acted as a Court which, after due consideration of the merits, had pronounced upon the issues between the parties.

Held, that the effect of the German procedure was the same as if in South African Courts a settlement had been made an order of Court because the H recording of the settlement in a German Court created the right to execute. (At 679B-B/C.)

Held, further, that the recorded settlement was no different from an order of Court upon which execution may be levied. (At 679C.)

Held, further, that there was no reason to disregard orders of foreign Courts of competent jurisdiction made without determination of the merits, for example default judgments, judgments by consent or settlement orders I in the form of recorded settlements. (At 679D-E.)

Held, further, as to the claim for interest, that in terms of the German Procedural Code the debt recorded in the settlement bore interest at 4% per annum from 2 December 1980...