The South African High Court in Pretoria refused to grant an application seeking to enforce an interdict granted by a Bermudan court against a South African company that was at no stage present in Bermuda and did not submit to its jurisdiction. The court applied the principles recognised by South African law insofar as its concerns the jurisdiction of foreign courts.
A foreign judgment will be enforced by our courts provided that the court which pronounced the judgment had jurisdiction to entertain the case, and provided recognition and enforcement of the judgment by our courts would not be contrary to public policy. The foreign court will have jurisdiction to entertain an action against a South African defendant if (i) at the time of the commencement of the action the defendant is physically present within the foreign state to which the court belongs; (ii) at the time of commencement of the action the defendant, although not physical present, is either domiciled or resident within such state; or (iii) the defendant submits to the jurisdiction of the court.
The court applied these principles to an interdict (injunction) granted by the Bermudan court and rejected the argument that the principles only apply to judgment sounding in money. Arguments on general principles and an attempt to persuade the court to develop the common law were also rightly dismissed.
The court also held that the order would be against public policy because there were pending administrative proceedings in South Africa and the interdict would interfere with South Africa’s sovereignty by interfering with the dispute that has its basis in the South African minerals laws. The court said “It is inconceivable that a foreign court should ever have the power to regulate the conduct of citizens in other countries in respect of the internal functioning of the administration of a country and its courts”. Recognition and enforcement of the interdict would therefore be contrary to public policy.
[Nkwe Platinum Limited v Genorah Resources (Pty) Ltd and Others, ZAGPPHC case no 30712/2023]
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Read the original publication at Norton Rose Fulbright.
