scholarly journals PRESENCE AS A BASIS FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT SOUNDING IN MONEY: THE “REAL AND SUBSTANTIAL CONNECTION” TEST CONSIDERED

Obiter ◽  
2015 ◽  
Vol 36 (1) ◽  
Author(s):  
GMN Xaba
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Constitutional Court ◽  
Natural Justice ◽  
Recognition And Enforcement ◽  
Mere Presence ◽  
The Common ◽  
Foreign Judgment ◽  
Academic Debate

A somewhat contested basis of international competence in the recognition and enforcement of foreign judgments in South Africa is mere presence. Over the years, an academic debate has raged in South Africa over mere presence as a basis of jurisdiction for the enforcement of foreign judgments sounding in money. A recent decision by the Constitutional Court makes the topic worth revisiting.Practical circumstances, social and political considerations as well as natural justice inevitably call for the recognition and enforcement of foreign judgments. As Forsyth aptly puts it “[a] plaintiff may sue in one country and hear with pleasure judgment given in his favour, then discover, to his dismay, that the defendant, with his assets, has absconded to another country”. In such a situation, the judgment has become brutum fulmen in the court which pronounced it and the plaintiff is placed in a grossly prejudicial position. However, because of widely accepted values and principles, legal systems of the world recognize and appreciate that a judgment rendered by the courts of one country may be enforced elsewhere, provided certain conditions are satisfied.Under South African common law one of the conditions for the enforcement of foreign judgments is 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 jurisdiction of foreign courts. (In Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W) 1037B the court stated that the mere fact that the foreign court may have had jurisdiction under its own laws, is not conclusive. Instead, the question of jurisdiction has to be determined in the light of the principles of our law on the jurisdiction of foreign courts. Other requirements for recognition and enforcement are that (i) the foreign judgment must be final and conclusive in its effect and not have become superannuated; (ii) the recognition and enforcement of the judgment by South African courts should not be contrary to public policy; (iii) the foreign judgment should not have been obtained by fraudulent means; (iv) the judgment must not involve the enforcement of a penal or revenue law of the foreign state; and (v) the enforcement of the foreign judgment must not be precluded by the provisions of the Protection of Business Act 99 of 1978, as amended. See Jones v Krok 1995 (1) SA 667 (AD) 685B−D.) This note is concerned only with the requirement that the foreign court that pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. The other four requirements are outside the scope of this paper and will not be discussed. It appears that the requirement that the foreign court must have had jurisdiction is a tenet central to the common law world. This requirement is a concept sui generis which is not affected by the internal jurisdiction rules of the foreign court, nor by the internal jurisdiction rules of the South African courts. Under South African common law there are, at least, two grounds which have been established with absolute clarity, that clothe a foreign court with international competence.

scholarly journals The Case of Government of the Republic of Zimbabwe v Louis Karel Fick: A First Step towards developing a Doctrine on the Status of International Judgments within the Domestic Legal Order

2017 ◽  
Vol 17 (1) ◽  
pp. 565
Author(s):  
Erika De Wet
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Common Law ◽  
Legal Order ◽  
Constitutional Court ◽  
The Status ◽  
The Common ◽  
Foreign Judgment ◽  
Domestic Law

The Fick case which was decided by the Constitutional Court on 27 June 2013 was the first time since its inception that the Constitutional Court was confronted with the status of a binding international decision within the domestic legal order. It concerned a binding decision by the (now suspended) Southern African Development Community (SADC) Tribunal against Zimbabwe, which was also enforceable in South Africa. A key issue before the Court was whether or not the South African statutory rules of civil procedure for the enforcement of foreign judgments also covered judgments of international courts and tribunals (as anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the relevant statutory legislation was applicable in this instance, the common law remained the only possible avenue through which the SADC Tribunal’s decision could be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments had developed only to a point where it provided for the execution of judgments made by domestic courts of a foreign state (ie decisions of other national courts). The Court was therefore confronted with whether or not an international decision in the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South Africa to the rule of law, as well as its obligations under international law, and to an international-law friendly interpretation of domestic law. Although the decision is to be welcomed and applied the law correctly to the facts of the case, it does raise the issue of the wisdom of equating international judgments with foreign judgments on a more general scale. This relates to the fact that it is generally accepted in most jurisdictions that the recognition and enforcement of a “foreign judgment” can be denied where it would result in a violation of domestic public policy. The public policy exception does not, however, fit well in a regime based on public international law, which does not permit States to use their domestic law as an excuse for not implementing their international obligations.

scholarly journals IS THERE STILL DEFAMATION BASED ON ADULTERY UNDER SOUTH AFRICAN LAW? A CRITICAL REVIEW J v J (4918 2012) [2016] ZAKZDHC 33 (unreported)

Obiter ◽  
2017 ◽  
Vol 38 (2) ◽  
Author(s):  
Michael C Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Critical Analysis ◽  
Common Law ◽  
Constitutional Court ◽  
High Court ◽  
Personality Rights ◽  
The Common ◽  
The Republic ◽  
Made In

On 22 July 2016, the Durban High Court ruled (per Masipa J) that there is no longer an action for defamation founded on the publication of allegations of adultery against another person. The court solely based its finding on the earlier judgment of the Constitutional Court (CC) in DE v RH (2015 (5) SA 83 (CC); 2015 (9) BCLR 1003 (CC), hereinafter “DE”). Earlier, in June 2015, in the DE judgment, the CC had unanimously struck down delictual action for contumelia and loss of consortium damages founded on adultery. In annulling this action, the CC held that the common-law action for contumelia and loss of consortium was no longer viable and that it was incompatible with the Constitution of the Republic of South Africa, 1996. Still, a question that was never considered by the courts prior the judgment of J is whether the DE judgment has automatically abolished other delictual actions aimed at protecting personality rights, specifically an action for defamation, and in general, actions for invasion of privacy and impairment of dignity, all founded on allegations of adultery. In this judgment, the court held that in view of the decision of DE, “public opinion no longer considers adultery as tabooed... a statement to the effect that a person committed adultery can no longer convey a meaning with the propensity to define a person …”. Nevertheless, when the opportunity to definitively answer this question ultimately presented itself, albeit in relation to defamation of character (or the protection of reputation), the court in J failed to satisfactorily address this vital question. As it will be demonstrated in this contribution, the judgment of Masipa J in the J judgment does not appear to be legally sound. Primarily, no authority, other than the CC judgment of DE, is used to support the judgment of J. As a result, the judgment has not even succeeded in dealing with the question of defamation, let alone other actions (namely, privacy and dignity) – all founded on adultery. Instead, the judgment creates confusion whether the judgment of DE extends to an action for defamation, and possibly to privacy and dignity. The objective of this note is to provide a critical analysis of the high court judgment in J. The critique is undertaken in light of the reasoning in DE and other like judgments. It begins by setting out the background to the ruling of the high court, followed by a commentary on the judgment. The commentary is undertaken in the form of a comparative analysis between the approaches adopted by the court in DE and in J, highlighting the striking differences in approaches by the two courts, when they develop the common-law. In addition, the critique of the high court judgment is made in light of the interests that the judgment of DE sought to protect when it abolished an action in adultery, and those that were at issue in the judgment of J. Thereafter, a conclusion is provided. The stance that the note adopts is that the CC in DE did not repeal defamation action founded on allegations of adultery; and that even if such action were to be annulled privacy and dignity ought to remain, as of necessity.

scholarly journals The protection of environmental interests through corporate governance: A South African company law perspective

2015 ◽  
Vol 11 (2) ◽  
pp. 8-20
Author(s):  
Anthony O. Nwafor
Keyword(s):  
South Africa ◽  
Sustainable Development ◽  
Corporate Governance ◽  
South African ◽  
Common Law ◽  
Company Law ◽  
The Common ◽  
Corporate Administrators ◽  
Environmental Interests

The quest to maximize profits by corporate administrators usually leaves behind an unhealthy environment. This trend impacts negatively on long term interests of the company and retards societal sustainable development. While there are in South Africa pieces of legislation which are geared at protecting the environment, the Companies Act which is the principal legislation that regulates the operations of the company is silent on this matter. The paper argues that the common law responsibility of the directors to protect the interests of the company as presently codified by the Companies Act should be developed by the courts in South Africa, in the exercise of their powers under the Constitution, to include the interests of the environment. This would guarantee the enforcement of the environmental interests within the confines of the Companies Act as an issue of corporate governance.

scholarly journals Constitutional Mimicry and Common Law Reform in a Rights-Based Post-Colonial Setting: The Case of South Africa and Malawi

2009 ◽  
Vol 53 (1) ◽  
pp. 142-170
Author(s):  
Sibo Banda
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Law Reform ◽  
Bill Of Rights ◽  
The South ◽  
Post Colonial ◽  
The Common

AbstractCompetent courts in Malawi must, as courts have done in South Africa, undertake a radical path in order to enhance the common law position of distinct categories of persons. This article discusses judicial appreciation of the common law-changing function of a bill of rights and its associated values, and judicial understanding as to when such a function may be brought into play. The article examines approaches taken by courts in South Africa in determining the circumstances in which the South African Bill of Rights applies to private relationships, when private parties owe each other duties arising out of the Bill of Rights and the scope of a court's authority to amend the common law in that regard. The article projects the debate, analysis and critique of these approaches onto the Malawian legal landscape through a discussion of the tenant worker contracted on the Malawi private estate.

An Opportunity Missed for Male Rape Survivors in South Africa: Masiya v Director of Public Prosecutions and Another

2008 ◽  
Vol 52 (2) ◽  
pp. 284-301 ◽  
Author(s):  
Ntombizozuko Dyani
Keyword(s):  
South Africa ◽  
South African ◽  
Constitutional Court ◽  
Vulnerable Group ◽  
Rape Survivors ◽  
Form Part ◽  
Lower Courts ◽  
The Common ◽  
Definition Of ◽  
Anal Penetration

AbstractThe Constitutional Court of South Africa recently handed down a judgment on the extension of the common law definition of rape to include anal penetration of women, but not of men. The court argued that women form part of the most vulnerable group in society. This article analyses the court's judgment and argues that the court should have included anal penetration of men in the light of South African lower courts' decisions, international law and the fact that there is currently a law before parliament which pertains to the anal penetration of men. The article also argues that the court should have taken into consideration that this case involved a child, who is also from the most vulnerable group in society.

scholarly journals A CRITICAL REFLECTION ON THE SOUTH AFRICAN LAW OF THE CHILD

Obiter ◽  
2014 ◽  
Vol 35 (2) ◽  
Author(s):  
RB Bernard ◽  
MC Buthelezi
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Best Interests ◽  
Teddy Bear ◽  
Wide Range ◽  
Minor Children ◽  
The Common ◽  
The Law ◽  
A Minor

Children are considered to be vulnerable, and therefore need to be protected against parents, strangers and even themselves. As a consequence, the State’s quest for the protection of children in South Africa is expressed in the implementation of legislation designed to offer greater care and protection. For instance, section 28 of the Constitution of the Republic of South Africa, 1996, offers a wide range of rights which are designed to offer greater protection to children. The rights of children can, in effect, be categorized into two themes. The first relates to the protection of children – as the child is dependent on those around him or her due to a lack of capacity, and is therefore vulnerable. The second theme relates to the autonomy of children. Section 28(2) of the Constitution provides that in any matter concerning a child, the best interests of the child are of paramount importance. However, most South African legislative provisions that deal with minor children seem to miss this principle, and are riddled with inconsistencies. In many statutes, where the principle is recognized, there is either limited appreciation of the significance of the principle and its overall impact on issues concerning children, or there is no coherence with the manner the courts have interpreted and applied the principle. For example, the recent judgment of  the Teddy Bear Clinic case declared sections 15 and 16 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act unconstitutional. The judgment has been heavily criticized by different segments of society for encouraging teens to engage in wanton sexual intercourse, but illustrates some of the flaws in legislation aimed at protecting the welfare of minor children in South Africa. Furthermore, the common law and other legislation such as the Choice on Termination of Pregnancy Act, the Marriage Act, and provisions of the Children’s Act regulating contraceptives and condoms, all contain such inconsistencies. For instance, the common law and section 24 (together with s 26) of the Marriage Act allow a minor from the age of puberty to enter into a valid marriage; section 129 of the Children’s Act requires that a minor aged twelve be assisted by a guardian to undergo a surgical operation; whereassections of the Choice Act do not require parental consent for terminating a minor’s pregnancy. This note reviews the above and other inconsistences currently prevalent in the law of the child in South Africa. A brief overview of the Teddy Bear Clinic case will be considered. Thereafter, it outlines and examines various gender-based contradictions in the law, and examines the possible rationale for justifying the particular legislative measure concerned. The note concludes by proposing possible solutions to the discrepancies that have been identified.

scholarly journals PROTECTING THE VULNERABLE IN SOUTH AFRICA: PROHIBITION OF CORPORAL PUNISHMENT IN THE PRIVATE SPHERE

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
Lizelle Ramaccio Calvino
Keyword(s):  
South Africa ◽  
Corporal Punishment ◽  
Common Law ◽  
Physical Punishment ◽  
Regulatory Framework ◽  
Private Sphere ◽  
Constitutional Court ◽  
Court Ruling ◽  
Legislative Framework ◽  
The Common

On 18 September 2019, the Constitutional Court confirmed that the common-law defence of “reasonable and moderate chastisement” is unconstitutional as it unjustifiably violates sections 10 and 12(1)(c) of the Constitution of the Republic of South Africa, 1996. As a result, parents are no longer permitted to punish their child at home by way of inflicting physical punishment behind a facade of discipline. Despite the aforesaid, it should be noted that corporal punishment in the private sphere is not explicitly prohibited by South African legislation. In addition, South Africa’s legislative system lacks an appropriate regulatory framework to administer the anticipated proliferation of assault cases against parents. It is against this backdrop that this article first analyses the current legislative framework regulating the protection of children from physical punishment, and then follows with a succinct overview of the Constitutional Court ruling. The article assesses whether the mere repeal of the common-law defence of “reasonable and moderate” chastisement will be sufficient to eradicate corporal punishment in the private sphere, and if not, whether legislative prohibition and/or other interceding strategies will be required to give effect to the objective of the Constitutional Court ruling. In this regard, by way of comparative research, the legislative framework adopted by Sweden, being the first country in the world to prohibit all forms of corporate punishment of children is evaluated. Lastly, recommendations are made for the incorporation of practical steps, including possible legislative measures, to establish a regulatory framework from a children’s rights perspective to prohibit corporal punishment in the private sphere. Accordingly, for purposes of analysis and consideration, a qualitative approach is applied for purposes of the research. Primary sources such as the Constitution, case law, legislation, governmental documents, statistical data and research reports are consulted in conjunction with journal articles and textbooks.

Developing the Jurisprudence of Constitutional Remedies for Breach of Fundamental Rights in South Africa: An Analysis of Hoffman and Related Cases

2018 ◽  
Vol 32 (1&2) ◽  
Author(s):  
Chuks Okpaluba
Keyword(s):  
South Africa ◽  
South African ◽  
Common Law ◽  
Case Law ◽  
Public Law ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
The Novel ◽  
Labour Law

In order to accomplish its objectives of extensively regulating rights and obligations, the 1996 Constitution of South Africa similarly provides for the enforcement of those rights by the courts. In turn, it has, in the said enforcement provisions, invested in the courts enormous discretionary powers to enable them to effectively deal with breaches of the entrenched fundamental rights as well as all constitutional rights violations. That the Constitutional Court has purposefully interpreted and made optimum use of the expressions: ‘appropriate relief’ and ‘just and equitable’ order in developing the constitutional remedies jurisprudence is crystal clear from a wealth of available case law. It is also not in doubt that the contributions of Justice Ngcobo (later Chief Justice) in this regard are intellectually gratifying. This presentation singles out for discussion and analysis the judgment of Ngcobo J in Hoffman v South African Airways 2001 (1) SA 1 (CC) which not only typifies judicial activism at its acme; it has also introduced into the South African public and labour laws, the novel remedy of ‘instatement.’ Apparently drawn from the analogy of the labour law remedy of reinstatement, ‘instatement’ is akin to the remedy of mandamus in public law, and specific performance in the law of contract. This article moves from the premise that this innovation is one of its kind in contemporary common law jurisprudence and one which courts in the common law jurisdictions world would no doubt emulate one fine day.

Family Provision in South Africa

2020 ◽  
pp. 477-506
Author(s):  
Marius J de Waal
Keyword(s):  
South Africa ◽  
Seventeenth Century ◽  
South African ◽  
Common Law ◽  
The Other ◽  
Customary Law ◽  
Protection Measures ◽  
South Africans ◽  
The Common ◽  
Property Regime

At the time of the reception of Roman-Dutch law at the Cape in the seventeenth century, both children and the surviving spouse enjoyed sufficient protection at the death of the breadwinner (normally the father and husband): children by way of the civilian legitimate portion and the spouse by way of the matrimonial property regime of community of property prevalent in Roman-Dutch law of the time. However, after the English occupation of the Cape in the early nineteenth century this protection was slowly eroded. This happened, first, by the acceptance of the principle of freedom of testation under English influence and, secondly, by the growing popularity of ante-nuptial contracts excluding community of property. This chapter explains how family protection was gradually restored in South Africa. In the case of children, this happened by the courts awarding a maintenance claim against the deceased parent’s estate; and in the case of the surviving spouse it was by means of a statutory maintenance claim against the estate of the other spouse. South African law therefore chose the common law approach of discretionary maintenance over the civilian approach of fixed shares. The chapter sets out the respective histories of these two claims as well as their operation in modern South African law. It discusses other possible protection measures and potential avoidance mechanisms. Finally, the chapter contains a brief discussion of the position of South Africans living under African customary law and the importance of the customary law principle of ‘ubuntu’ in this context.

Rule and Reason in the Common Law of Foreign Judgments

1999 ◽  
Vol 12 (2) ◽  
pp. 193-221
Author(s):  
Celia Wasserstein Fassberg
Keyword(s):  
Public Policy ◽  
Procedural Justice ◽  
Common Law ◽  
Minimal Level ◽  
Choice Of Law ◽  
The Public ◽  
Natural Justice ◽  
Foreign Law ◽  
The Common ◽  
Foreign Judgment

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

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