When considering whether to recognise and enforce a foreign judgment, should the domestic court accord the foreign court international jurisdiction on the basis that the judgment debtor was domiciled there?
An analysis of the approach taken by courts in the Republic of South Africa.
Anthony Kennedy / Andrew Moran
BPP Law School / Serle Court, London
Thursday, 12 September – 4:00 pm
Room W 401, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich
The Roman-Dutch common law of the Republic of South Africa states that a foreign judgment is not directly enforceable in that jurisdiction.
For a foreign judgment to be recognised and enforced in the Republic of South Africa (‘RSA’), it must be shown, inter alia, that the foreign court which pronounced the judgment had jurisdiction to do so (i.e. that it had “international jurisdiction”). In addition to the established bases of international jurisdiction (residence, submission and presence), it has been held that where, at the time of commencement of the proceedings, the judgment debtor was domiciled within the state in which the foreign court exercised jurisdiction, that foreign court has international jurisdiction according to the common law of the RSA. This position, different to that presently adopted by the English common law but likely to be followed in other Southern African Roman-Dutch law jurisdictions, has been criticised.
To consider whether domicile ought, pursuant to the common law of South Africa, to provide a basis for according the foreign court international jurisdiction, this paper begins by assessing the meaning of the term domicile under that common law, before going on to analyse the impact of the passage of the RSA Domicile Act 1992 on that meaning.
Having set out the definition to be given to the term domicile, this paper discusses the broader issue of why judgments pronounced by foreign courts are recognised in the RSA at all. It argues that the largely pragmatic reasons offered by RSA courts do not articulate clearly enough the theoretical rationale for the phenomenon. From a policy perspective, the South African courts are now faced with a choice: to cleave to the English common law’s traditional explanation based on the doctrine of obligation or to adopt the Canadian approach based on enforcing judgments given by a court which had a “real and substantial connection” to the dispute. The theory chosen underpins what the enforcing domestic court must look for when deciding whether the foreign court had international jurisdiction. This, in turn, assists in answering the question whether the fact that the judgment was pronounced by the court of the defendant’s domicile should mean that the court did indeed have international jurisdiction.
In the light of this discussion, this paper concludes by considering whether the concept of “domicile” as identified fits sufficiently within either theory and provides an answer to the question whether domicile should, pursuant to the Roman-Dutch common law of the RSA (and other Roman-Dutch law jurisdictions), provide a basis for according international jurisdiction to a foreign court.