International Jurisdiction in Claims Sounding in Money: Is Richman v Ben-Tovim the Last Word?

• Jurisdiction: South Africa
• Published date: 25 May 2019
• Date: 25 May 2019
• Author: Christian Schulze
• Pages: 61-73
• Citation: (2008) 20 SA Merc LJ 61

International Jurisdiction in Claims Sounding in

Money: Is Richman v Ben-Tovim the Last Word?

CHRISTIAN SCHULZE*

University of South Africa

1 Introduction

A foreign judgment is a judgment pronounced by a foreign court, that is to

say, by a court other than a South African court. Following from the principle

of territorial sovereignty, a foreign judgment cannot, in terms of the common

law, have a direct operation of its own force within South Africa.

1

When

municipal courts in South Africa and elsewhere therefore follow the long

established practice of recognising and enforcing foreign judgments, they do

so by virtue and on the strength of their own national law and not on the basis

of some pre-existing obligation imposed upon them by public international

law.

2

The theoretical considerations and the raison d’ être underpinning the basis

of recognition and enforcement are enlightened social values and the

facilitation of international relations. In matters of personal status and

international trade, which feature prominently in the contemporary world

where the mobility of capital and people has expanded manifold over the past

two millennia, a place must be found to do justice and to foster the free f‌low

of commerce and community inter-relationships in a shrinking world.

3

Before a foreign judgment can be enforced, it must be recognised.

Recognition means that the domestic court acknowledges that the judgment

has, within the court’s own jurisdiction, the legal effect which the foreign

court intended it to have, and by enforcing the judgment, the domestic court

will compel the judgment debtor to comply with it.

4

However, it should be

borne in mind that the judgment of a foreign court will only be enforced if

that court had jurisdiction in the international sense, which means that the

court which pronounced the judgment must have had jurisdiction to entertain

the case according to the principles of our law with reference to the

* First State Examination in Law (Hannover) Dr Iuris (Göttingen) Higher State Examination in Law

(Hamburg). Professor of Law, Research Director, Institute of Foreign and Comparative Law, School of

Law, University of SouthAfrica.

1

See David Pistorius Pollak on Jurisdiction 2 ed (1993) at 158.

2

See Harry Silberberg The Recognition and Enforcement of Foreign Judgments in South Africa

(1977) at 1.

3

See AB Edwards (updated by E Kahn) ‘Conf‌lict of Laws’ in: WA Joubert (ed) The Law of South

Africa vol 2 part 2 2 ed (2003) in par 344n10.

4

Although there are certain classes of judgments which do not require enforcement, such as a

declaratory order establishing a title to a thing, a decree of divorce, or a judgment dismissing a claim

(apart from an ancillary order for costs which may of course be enforced): see Silberberg op cit note 2

at 6.

61

(2008) 20 SA Merc LJ 61

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