Practical Problems Regarding the Enforcement of Foreign Money Judgments

• Jurisdiction: South Africa
• Author: Christian Schulze
• Published date: 16 August 2019
• Citation: (2005) 17 SA Merc LJ 125
• Pages: 125-136
• Date: 16 August 2019

Articles

Practical Problems Regarding the Enforcement

of Foreign Money Judgments*

CHRISTIAN SCHULZE**

University of South Africa

1 The Effect Given to Foreign Judgments

Unsatisf‌i ed foreign judgments give rise to complicated questions of private

international law. If a claimant fails to obtain satisfaction of a judgment in the

country where it has been granted, the question arises whether it is enforceable

in another country where the defendant is found. The public international

law principles of sovereignty and equality of states imply that every state has

the right to the exclusive jurisdiction over its territory and its population.1 A

necessary concomitant of this right is the fact that judgments pronounced by

the courts of one country are of no force or effect in another country and that,

prima facie, no sovereign state is obliged either to recognise or to enforce a

‘foreign’ judgment, that is, a judgment emanating from a court of law outside

its area of territorial jurisdiction. When, therefore, municipal courts in South

Africa (and elsewhere) 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 purpose of the recognition and enforcement of foreign judgments is

founded upon enlightened social values and the facilitation of international

relations. It also supports and enhances the free f‌l ow of commerce and

community interrelationships in a shrinking world.3 Recognition of a foreign

judgment means that the domestic court acknowledges that the judgment has,

125

* Paper presented at the Conference on Private International Law, University of Johannesburg, 17-20

Jan 2005.

** Dr jur (Göttingen), Assessor (OLG Hamburg); Research Director and Professor of Law, Institute

of Foreign and Comparative Law, School of Law, University of South Africa.

1 Ian Brownlie Principles of Public International Law 5 ed (1998) at 289. The attitude adopted from

the earliest days by English law has been to permit the successful suitor to bring an action in England on

the foreign judgment; this was based solely on the ground of comity. However, the doctrine of comity

was supplanted by ‘the doctrine of obligation’. Where a foreign court of competent jurisdiction has

adjudicated a certain sum to be due from one person to another, the liability to pay that sum becomes a

legal obligation that may be enforced in England by an action of debt. Once the judgment is proved, the

burden lies on the defendant to show why he should not perform the obligation. see FT Piggott Foreign

Judgments and Jurisdiction Part I (1908) at 10-1.

2 Harry Silberberg The Recognition and Enforcement of Foreign Judgments in South Africa (1977)

at 1.

3 AB Edwards ‘Conf‌l ict of Laws’ (updated by E Kahn) in: WA Joubert (ed) The Law of South Africa

vol 2 part 2, 2 ed (2003) in par 344 n 10.

(2005) 17 SA Merc LJ 125

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