Parties are increasingly being prevented from escaping legal accountability for their wrongful actions.
The advent of globalisation, international trade and commerce and South Africa's increasing participation in the global economy require, as far as is reasonably possible, that judgements of foreign civil courts be recognised by our courts. A party armed with a final and conclusive judgement of a foreign court should be entitled to the relief contemplated in that judgement at the hands of a South African court.
In a recent case heard before the Supreme Court of Appeal (SCA), a certain Mr Richman, a solicitor in the United Kingdom, performed legal services for Mr Ben-Tovim to the value of approximately £58 000 (Pounds Sterling), for which services he was not paid. Mr Richman instituted action against Mr Ben-Tovim and was successful in obtaining default judgement in the High Court of Justice of England and Wales. Significantly, Mr Ben-Tovim was merely visiting the United Kingdom for business purposes at the time the proceedings were initiated: he, in fact, resides in South Africa and is neither domiciled nor resident in England.
When Mr Richman attempted to enforce the judgement in South Africa, Mr Ben-Tovim's principal defence was that the English court lacked international jurisdiction, hence the judgement was unenforceable in South Africa.
The SCA had to determine whether the English court had the required jurisdiction to entertain the matter according to principles recognised by South African law regarding the jurisdiction of foreign courts. Having jurisdiction in terms of English law is simply not enough. It has been traditionally accepted that foreign judgements are not directly enforceable by South African courts; however, the SCA explained that foreign judgements do constitute a cause of action, which means that the judgement can be enforced provided that the foreign court had jurisdiction to make the order according to South African law principles.
The SCA supported the view that, as Mr Ben-Tovim had been physically present within the jurisdiction of the foreign court at the time the proceedings began, the South African requirements of jurisdiction to make the order had been complied with. On that basis, the judgement was enforceable by a South African court. The SCA has declared that a foreign court has jurisdiction to entertain an action for a judgement sounding in money against a defendant who is a natural person in the following cases:
- if at the time of the commencement of the action the defendant is physically present within the state to which the court belongs;
- if at the time of the commencement of the action the defendant, although not physically present within such state, is either (a) domiciled or (b) resident within such state; or
- if the defendant has submitted to the jurisdiction of the court.
In order to prevent persons such as Mr Ben-Tovim from escaping legal accountability, the courts have now implemented a common sense and pragmatic approach to enforcing foreign civil judgements. Grounds such as comity between nations are finally being considered in light of the current global environment.
Jonathan Witts-Hewinson and Eric Meyer