Constitutional Court of South Africa holds that property of the Government of Zimbabwe could be attached in South Africa to give effect to awards of the region’s international law court, the SADC Tribunal, against Zimbabwe
October 11, 2013
Government of the Republic of Zimbabwe v Fick and Others
Constitutional Court of South Africa
27 June 2013
Mogoeng, CJ, Moseneke DCJ Froneman j, Khampepe J, Nkabinde J, Skweyiya J and Zondo (in part), & Mhlantla Ag J
Whether South African courts have the jurisdiction to register and facilitate the enforcement of the costs order made by the SADC Tribunal against Zimbabwe
This case concerns the recognition and enforcement of two judgments by the Tribunal of the Southern African Development Community (“SADC”) against Zimbabwe, and the consequent attachment of immovable property owned by Zimbabwe in South Africa. As a sovereign state, Zimbabwe is generally immune from the jurisdiction of, and execution by, the domestic courts of other states.
In 2008, the SADC Tribunal declared Zimbabwe’s 2005 Amendment to its Constitution (which provided for a fast-track land reform programme) to be in breach of international human rights law, on the grounds that it indirectly discriminated against white farmers, deprived them of compensation, and denied them access to the courts. The Tribunal ordered Zimbabwe not to evict farmers from land expropriated under this programme, as well as to compensate farmers who had already been dispossessed of land under the programme.
Zimbabwe refused to comply with the order, arguing that the Tribunal had exceeded its jurisdiction. In 2009, the farmers again approached the Tribunal, and were granted an order declaring Zimbabwe to be in breach of the 2008 order and directing Zimbabwe to pay their legal costs. The farmers did not succeed in having these judgments enforced by the Zimbabwean courts, and thus some of the farmers applied to have the judgments enforced against Zimbabwe in the courts of South Africa, which is a SADC member state, and in which Zimbabwe owns immovable property.
The farmers approached the North Gauteng High Court, Pretoria (High Court) for the registration and enforcement of the costs order in South Africa. The High Court ordered the registration and execution of the costs order against property of Zimbabwe in South Africa. Zimbabwe applied to the High Court for the rescission of the order, which application was dismissed. Zimbabwe appealed unsuccessfully to the Supreme Court of Appeal. Aggrieved by that outcome, Zimbabwe sought leave to appeal to the Constitutional Court.
1. The SADC Treaty was ratified by Zimbabwe in 1992 and South Africa acceded to it in 1994, it being approved by the Senate and National Assembly in 1995. The Treaty came into force in September 1993. The Tribunal was established under the Treaty, is compositions, powers and functions were set out in the Tribunal Protocol. Initially the coming into force of the Tribunal Protocol depended on its ratification by two-thirds of SADC Member States. This did not happen. However, the SADC Summit (the SADC supreme policy making body) that has the power to amend the Treaty, did so in August 2000, including the Tribunal Protocol in the Treaty itself (creating the Amended Treaty). This amendment came into force when the Amended Treaty was adopted by three-quarters of all Members of the Summit when it was signed by 14 Heads of State on 14 August 2001 (including the Zimbabwe and South Africa). At this stage Zimbabwe and South Africa were bound by the Amended Treaty, including the Tribunal Protocol.
2. Zimbabwe would ordinarily enjoy immunity from civil suits in South Africa under section 2 of the Immunities Act. Section 3 of the Immunities Act, however, provides that immunity shall be forfeited in proceedings in respect of which immunity has been waived. Article 32 of the Tribunal Protocol (to which Zimbabwe has agreed to b bound) that obliged Member States to facilitate the enforcement of judgments of the Tribunal, and that decisions of the Tribunal were binding and enforceable “within the Territories of the States concerned.
3. Although the Foreign Judgments Act had been enacted to make the enforcement of certain foreign judgments easier, it only applied to countries designated by the Minister, and to do date only Namibia was a designated country. As such the Foreign Judgments Act had no application to the present case.
4. There are essentially six requirements in the common law that must be met before a foreign judgment will be recognised and enforced by South Africa courts. These are:
(i)that the court which pronounced the judgment had jurisdiction to entertain the case according to the principles recognised by South African law with reference to the jurisdiction of foreign courts (sometimes referred to as international jurisdiction or competence);
(ii)that the judgment was final and conclusive in its effect and had not become superannuated;
(iii) that the recognition and enforcement of the judgment by South African Courts would not be contrary to public policy;
(iv)that the judgment was not obtained by fraudulent means;
(v) that the judgment did not involve the enforcement of a penal or revenue law of the foreign State; and
(vi) that enforcement of the judgment was not precluded by the provisions of the Protection of Business Act 99 of 1978, as amended.
There was no dispute that the order in question was final, was not obtained fraudulently, did not involve the enforcement of foreign revenue law and was not precluded by the Protection of Business Act.
5. The enforcement of the judgment would not be against South African public policy, as the Constitution, which embodies South African public policy, promotes democracy, human rights and the rule of law.
6. Zimbabwe had objected to the Tribunal ruling specifically on its land reform as SADC did not have its own human rights standards or standards on agrarian reform that Zimbabwe’s actions could be measured, but not that the Tribunal had no jurisdiction in general to consider disputes brought against Zimbabwe. Also, Zimbabwe had submitted to the Tribunal’s jurisdiciton by participating in those proceedings. The basis for objecting to the jurisdiction of a foreign court or tribunal whose order is sought to be enforced in a South African court must be materially similar to the objections previously raised before the foreign court or tribunal that made the order to be enforced. Otherwise the objection should be dismissed.”
7.Barring exceptional circumstances, such as where the new basis for objection was not yet available to the objecting party to raise in a foreign court, grounds on which jurisdiction is objected to in a domestic court, must have been raised in a foreign or regional court. Otherwise, it should not be open to a party, which chose to confine itself to specific objections, to later shift to altogether new ones before another court whenever those previously raised have proved to be without merit.
8. Two jurisdictional requirements are important. (i) a party who applies for the enforcement of a judgment sounding in money ‘must have been domiciled or resident within the State in which the foreign court exercised jurisdiction’ or (ii) the one against whom the order is sought to be enforced must have submitted to the jurisdiction of the foreign court. These requirements contemplate judgments made by foreign domestic courts, as it was hard to see how the requirement that the applicant be domiciled or resident within the State in which the foreign court exercised jurisdiction applied to international tribunals.
10. There was a gap in the common law, and this should be developed. Common law requirement should be developed for a number of reasons including facilitating the recognition of foreign judgments. This is important because of international trade and commerce, and to prevent people from avoiding legal accountability. Also, the principles of respect for other nations and the principle of reciprocity favoured a more inclusive recognition of foreign judgments.
11. The right of access to courts, that includes the right to an effective remedy, meant that in this situation, as the gap in the common law meant the farmers had no means to enforce the judgment they had obtained, the common law should be developed. The need to develop the common law to ensure the farmers had access to an effective remedy was even more pronounced since Zimbabwe, against which an order sanctioned by the Treaty was made by the Tribunal does, in terms of its Constitution, denied the aggrieved farmers access to domestic courts and compensation for expropriated land. Of importance also is the fact that a further resort to the Tribunal was necessitated by Zimbabwe’s refusal to comply with the decision of the Tribunal.”
12. The considerations listed above, meant that the common law should be developed to cover the Tribunal’s judgements, and the term foreign courts should be read to include international tribunals.
Zimbabwe had failed to show the High Court lacked the jurisdiction to register the costs order for enforcement. The appeal was dismissed with costs.