International Jurisdiction in Claims Sounding in Money

• Jurisdiction: South Africa
• Published date: 16 August 2019
• Pages: 45-52
• Author: Sieg Eiselen
• Date: 16 August 2019

International Jurisdiction in Claims Sounding

in Money

SIEG EISELEN*

University of South Africa

Introduction

It has long been recognized that a judgment of court is worth nothing if it

cannot be enforced. So the recognition and enforcement of foreign judgments

is nothing new in South African law or in most jurisdictions worldwide. It was

well established even in Roman-Dutch law.1

It is one of the requirements for the recognition and enforcement of foreign

judgments in South African courts that the court rendering the judgment must

have had international jurisdiction or competence according to the rules of

South African law.2 This is a requirement in most legal systems.3 At the heart of

this requirement lies the reasoning that courts should not recognize or enforce

foreign judgments where extended forms of jurisdiction had been exercised by

the foreign court, as this might have unfairly prejudiced the defendant in such

cases. But it has always been a strange phenomenon that in the recognition of

foreign judgments South African courts, like their international counterparts,

have been reluctant to recognize at least their own grounds of jurisdiction

as suff‌i cient; instead, they have recognized only more limited grounds of

jurisdiction for purposes of international competence.4

In the South African literature and the latest Supreme Court of Appeal case

law mention is made of three grounds of jurisdiction that will be recognized

in the enforcement of foreign claims sounding in money, which grounds also

seem to be universally recognized:5 (a) submission by the defendant; (b) the

domicile of the defendant; and (c) the residence of the defendant. But there may

be a fourth ground that is ignored in the above authorities — the mere physical

45

* BJuris LLB LLD (PU). Professor of Private Law in the University of South Africa, Pretoria.

1 HR Hahlo & Ellison Kahn The Union of South Africa: The Development of its Laws and Constitution

(1960) 756; Walter Pollak The South African Law of Jurisdiction (1937) 202–203; Erwin Spiro The

Conf‌l ict of Laws Being a Collection of the Author’s Articles on the Subject Brought up to Date (1973);

Erwin Spiro The General Principles of the Conf‌l ict of Laws (1982) 106–107.

2 Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W) at 1037H; Purser v Sales;

Purser & another v Sales & another 2001 (3) SA 445 (SCA) at 405C; Pollak op cit note 1 at 206–

207; Christopher Forsyth Private International Law: The Modern Roman-Dutch Law Including the

Jurisdiction of the High Courts 4 ed (2003) 391–392; PSG Leon ‘Roma non locuta est: the Recognition

and Enforcement of Foreign Judgments in South Africa’ (1983) 16 CILSA 325 at 326–327.

3 Spiro op cit note 1 (1982) at 107–108; Cheshire and North’s Private International Law 13 ed by

Peter North & JJ Fawcett (1999) 406ff; Alexander Layton (ed) European Civil Practice 2 ed (2004)

¶ 9.002 at 226ff and ¶ 9.025 at 241ff, ch 11.

4 Supercat Inc v Two Oceans Marine CC 2001 (4) SA 27 (C) at 30.

5 Purser v Sales supra note 2; Forsyth op cit note 2 at 393–404; WA Joubert (founding ed) The Law of

South Africa vol 2 sv ‘Conf‌l ict of Laws’ (by CWH Schmidt) 1st reissue updated by AB Edwards (1993)

par 478 at 387; Pollak on Jurisdiction 2 ed by David Pistorius (1993) 162–163; Hahlo & Kahn op cit

note 1 at 756; Christian Schulze On Jurisdiction and the Recognition and Enforcement of Foreign Money

Judgments (2006) 18–21.

(2006) 18 SA Merc LJ 45

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