SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
Case N umber: A2023/043983
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
DATE: 25 February 2025
SIGNATURE:
In the matter between:
THE LIQUIDATORS (SMALL AND MEDIUM Appellant
ENTERPRISES BANK LIMITED ) [S.M.E LIMITED
(IN LIQUIDATION)]
and
MET BANK LIMITED (FORMALLY METROPOLITAN Respondent
BANK OF ZIMBAMBWE )
______________________________________________________________________
Summary: Appeal – Randburg Magistrate Court ’s judgment setting aside the
registration of a foreign obtained judgment from the High Court in Namibia . Registration
was made in terms of section 3(1) of the Enforcement of Foreign Civil Judgments Act 32
of 1988 (“Foreign Judgment Act”) on 26 November 2021 by the Clerk of the Court .
Subsequent registration was challenged in terms of section 5(1) of the Forei gn
Judgment Act as a ‘nullity’ for lack of compliance with the requirements of the said Act.
The Magistrate read Rule 9 (3)(e) of the Magistrate Courts Rules as a cornerstone of the
registration in the absence of the application for service notice in the Foreign Judgment
Act. This Court found that Rule 9(3)(e) cannot be applied independently of the
intersection of section 3(2) and 5( 2) of the Foreign Judgment Act. Also, the Cle rk of the
Court justifiable registered the judgment as evidenced by the stamp and the name of
the Clerk of the Court. The issue of the certificate also found no relevance because of
the commonality in exchange rates between South Africa and Namibi a. This C ourt, as
an Appeal C ourt with limitations on non -interference with the Court a quo judgment,
established that the Magistrate committed a misdirection in the interpretation of the law.
_____________________________________________________________________
JUDGMENT
NTLAMA -MAKHANYA AJ (NOKO J concurring)
Introduction
[1] This application concerns an appeal against the whole judgment and order
delivered by Magistrate Booysen of the Randburg Magistrate Court on 7 December
2022 under case number: 288 28/2021 . The Appellant is the Liquidators (Small and
Medium Enterprises Bank Limited ) [S.M.E Limited in Liquidation ] and the Respondent
(Met Bank Limited ) is a commercial bank that is operating in Zimbabwe . The
Respondent’s Counsel and its Attorneys of Record withdrew from the matter. The
Respondent was served with the notice of set down but did not appear hence the
appeal proceeded in its absence .
[2] The crux of the appeal is the judgment of the Court a quo that set aside the
registration of a foreign obtained judgment from the High Court in Namibia which was
made an order of court in terms of section 3 of the Enforcement of Foreign Civil
Judgments Act 32 of 1988 (Foreign Judgments Act). The said judgment then bec ame an
effective South African judgment in terms of section 4 of the Foreign Judgment Act. In
this case, the Appellant obtained a judgment in Namibia against the Respondent which
was then registered in terms of se ction 3 of Foreign Judgment Act by the Clerk of
Randburg Magistrate Court . The registration of the said judgment was challenged by
the Respondent in terms of section 5(1) of the said Act . The Court a quo set aside the
registration of the judgment after it established that the prescripts of section 3 of the
Foreign Judgment Act relating to registration of foreign judgments were not followed .
[3] Pursuant to the setting aside of the registration of the said judgment , the
Appellant filed a notice of appeal on 7 December 2022 contending that the Magistrate
erred, and the order was not supposed to have been granted. On this basis, it is
imperative that I provide a brief background on this matter.
Background
[4] The Appellant, having been granted an order against the Respondent by the High
Court in Nam ibia under case number: HC -MV-COV -MOT -GEN -2019/00105 on 29
October 202 0 sought an order to have the judgment registered in South Africa in terms
of section 3 of the Foreign Judgment Act. The Namibian judgment ordered the
Respondent to, inter alia , pay the Appellant an amount of N$1,028,286,906.13 (One
Billion Twenty -Eight Million Two Hundred and Eighty -Six Thousand Nine Hundred and
Six Namibia n Dollars and Thirteen Cents); together with in terest and costs from July
2017 . On 26 November 2021, the Appellant successfully registered the Namibian
judgment in the Randburg Magistrates Court, as it is required to do so in terms of
section 3 of the Foreign Judgment Act. Having the Namibian judgment so registered , it
became an enforceable South African judgment against the Respondent in terms of
section 4 of the said Act .
[5] However, as alleged, the Respondent was not aware that the judgment was
regist ered. Allegedly , as soon as the Respondent came to the knowledge of its
registration , an application was brought in terms of section 5(1) of the Foreign Judgment
Act to have it set aside. The a pplication was heard b y Magistrate Booysen (“the
Magistrate”) on 7 December 2022. The Magistrate , in an ex tempore judgment,
rescinded the registration on the basis that the requirements set out in section 3(1) of
the Foreign Judgment Act were not complied with . The Appellant argued that the Court
a quo erred in granting the Respondent’s application on the basis that the registration
was void.
Before the Court a quo
[6] In the Court a quo , without reproducing the Magistrate’s reasoning on the
decision made, after an intense analysis of the review of the registration process , the
Magistrate established that the registration of the judgment fell ‘foul’ in not following the
requirements of section 3(1) of the Foreign Judgment Act as well as Rule 43(B)(2)(b) of
the Rules of the Magistrates Courts.
[7] The Magistrate proceeded with the consideration of the merits of the application
in this matter and gave reasons to the Respondent’s evidence pertaining to the
registration of the foreign judgment. The first point of departure was to read section 5(1)
of the Foreign Judgment Act into the context of Rule 43 (3)(e) of the Magistrate Courts
Rules with reference to the allegation s that:
[7.1] First, the service was not affected. The Magistrate considered the
Respondent’s contention that the application was defective in that it was brought
outside the stip ulated time frames. The Court a quo considered the implications
of section 5(2) of the Foreign Judgment Act which requires an application to be
brought within 21 days after the notice of service. The Magistrate reasoned that
the Foreign Judgment Act does not have an inherent process regarding service.
As expressed by the Magistrate, t his meant that when the application was
brought it was dealt with in terms of Rule 9 of the Magistrate Courts Rules which
regulate the service process , notices and other documents. According to the
Magistrate, s ince the Respondent is a juristic person, the process of notices is
regulated by sub-rule 3(e) wherein the Sheriff’s proof of service found
application . Further, there was no report of the unwillingness o f an employee to
accept service with the consequent result of the Sheriff having to proceed and
affix the notice to the door on the registered business address or place, principal
place of business. The Magistrate found difficulty in the Sheriff’s return of service
that states ‘after a diligent search’ whe reas the Respondent was no longer at its
registered place of business. As a result, with no stipulated process in the
Foreign Judgment Act, Rule 9(3)(e) was found to be of application. In essence,
drawing from the Magistrate’s analysis of section 5(2) of the Foreign Judgment
Act, there is no ‘legal vacuum ’ relating to effecting service in the light of the
silence of the Foreign Judgment Act as the Rules of the Magistrates Court fill the
void.
[7.2] Secondly, another contentious issue about the sig ning of the judgment by
the Clerk of the Court which was not affixed to the notice . The Magistrate was of
the view that whether the notice was signed or not was not defective o r fatal to
the application . The rationale for such finding is because the stamp that was on
the registered judgment was reflective of the name of the Clerk of the Court and
was therefore sufficient.
[7.3] Thirdly , the final point considered by the Magistrate was the certification of
the local currency which is equivalent to that of Namibian currency by a banking
institution in South Africa that was not attached when it was registered.1 The
Respondent averred that they were not served with the certification of the
registered judgment in local currency or in effect the service was not effective.
The Magistrate, having read Rule 9(3)(e) into the record together with the
provisions of Rule 43(2)(b) of the Magistrates Court Rules and section 3(4) of the
Foreign Judgment Act , was surprised by the Appellant’s contention that there
was no need for the certificate. Despite the fierce argument, the Appellant
deem ed it necessary to file the same later in the name of Geraldine Ramiya, in
her capacity as Executi ve Manager, Corporate and Investment Banking Global
Markets of the Standard Bank of South Africa Limited . The Magistrate was of the
firm view that the certifi cation that confirms the unchanged or pegged currency
exchange rate does not exempt the party registering the foreign judgment from
filing a required certificate. It was the Magistrate’s reason that a ‘foreign obtained
judgment that is made out in a foreign currency, should be accompanied by a
certificate on registration of the judgment ’. Therefore, the Magistrate found that
there was no compliance with Rule 43( 2)(b) read with section 3(4) of the Foreign
Judgment Act.
[8] The Court a quo found compelling reasons for the argument made by the
Respondent and rejectin g that of the Appellant . The Respo ndent (Met Bank) as a
company, was found to have made a proper case for the setting aside of the registration
for lack of compliance with the Foreign Judgment Act .
[9] The Appellant was aggrieve d by the judgment of the Court a quo and applied for
leave to appeal which was granted. As a result, this Court is now focus ing on the merits
of the grounds of appeal relating to the registration of the foreign obtain ed judgment as
submitted by parties .
1 See Rule 43B(2) (b) of the Magistrate Court Rules which provides that:
A judgment creditor shall, together with the certified copy of a judgment referred to in subrule (1) :
if any amount payable under the judgment is expressed in a currency other than the
currency of the Republic, file a certificate issued by a banking institution registered in
terms of section 4 of the Banks Act, 1965 (Act 23 of 1965), stating the rate of exchange
prevailing at the date of the judgment.
Submission by parties
[10] Before this Court, the Appellant contended that the setting aside of the
registration of the foreign judgment as a ‘nullity’ by the Magistrate was misplaced in that .
[10.1] the Respondent’s application was defective because it was not
brought within the prescribed timelines as envisaged in section 5(2) which
mandates th e lodging of the application to be brought within 21 days after
service of notice referred to in section 3(2) of the Foreign Judgment Act.
[10.2] The Magistrate refused to admit the Appellant’s supplementary
affidavit that was meant to introduce informat ion which was unavailable at
the time of filing the original affidavit. In this regard, the supplementary
affidavit detailed the ambit of information relating to the contempt of
Respondent regarding the release of funds from the Dollar Account in
breach of the South African Court Order and an interdict that was granted
in terms of section 8 of the Foreign Judgment Act.
[10.3] The Appellant contends that after the order granted by the
Namibian High Court, Liquidators notified ABSA Bank Limited (ABSA) of
the South African judgment. ABSA acted on this notification and
particularly prohi bited payments from the following Met Bank’s Dollar
account numbers:
(i) 0[...];
(ii) 0[...]2;
(iii) 0[...]3; and
(iv) 0[...]4.
The prohibition serves as an interdict as envisaged in section 8 of the
Foreign Judgment Act wherein a notice issued in terms of section 3(2)
‘operates against any judgment debtor on whom the notice was serve d
and against any person who has such knowledge not to remove or
dispose of any assets of the judgment debtor if such removal or disposal
would prejudice the execution of the judgment ’.
As further expressed by the Appellant, following an enquiry into the affairs
of the SME Bank on 25 May 2022, a subpoena which was issued by
Commissioner, Ms Eunice Baloyi, who attended and on behalf of ABSA,
the Respondent’s account was reflective of the payments of USD 650 000
on 26 November 2 021 and USD 799 703.55 on 15 December 2021. As
the Appellant argued, the prohibition could have served as an interdict and
have prevented any monies from flowing out of, inter alia, Met Bank’s
Dollar Account. Considering the interdict, the Liquidators are unaware how
Met Bank achieved the payment out of its account. However, the
Liquidators are aware that the instruction for the payment of USD 799
703.55 to be effected from the Met Bank Dollar Account was given by Met
Bank’s employee, Tendai Chaitezvi, on 8 December 2021 .
On 30 November 2021, the South African judgment was already served on
Met Bank’s registered address by the Sheriff and with knowledge and
receipt of the said judgement, the Respondent still instructed ABSA in
December 2021 to give effect to the USD 799 703.55 transaction. The
amount of the USD 650 000, as well as USD 799 703.55 – both of which
were paid out of Met Bank’s Dollar Account after the interdict was granted
– have not been repaid into the Met Bank Dollar Account, or at all. As a
result, Met Bank is and remains in contempt of the interdict.
[10.4] The Respondent also failed to justify the prayer for alternative
remedy for ‘stay in execution ’ by not demonstrating that there is a pending
appeal again st the Namibian Judgment. Secondly, the factual basis to
justify the exercise of the discretion in its favour has not been s et out.
[11] However, the Respondent opposes the application arguing that :
[11.1] there was neither service nor notification about the registration of the
foreign judgment obtained by the Appellant against the Respondent in the
High Court of Namibia as required by the Foreign Judgment Act. The
Respondent was also not served with the act ual purported registration of
the said foreign judgment. The first -time the respondent saw the purported
registration of the foreign judgment was on the 15th of December 2021
when the same was emailed to it by its attorneys from the appellant’s
attorneys. This much should be common cause from the correspondence
between the appellant and the respondent's attorneys on 14 December
2021 and 15 December 2021.
[11.2] The Appellant, on 29 July 2022 served and filed their supplementary
affidavit which was meant t o introduce a completely new cause of action
that was not covered in the previous hearings of the matter. This was done
without the leave of the Court a quo , thus prejudicing the Respondent. The
filing was dismissed by the Court a quo and the matter procee ded with the
cause in the main action being granted in favour of the Respondent. The
Appellant, thereafter, filed this application with grounds that are less
persuasive for this Court arguing that :
[11.2.1] the Appellant seems not to be challenging the ground
that the Respondent relied on in their founding papers in the Court
a quo that the notice of the registration was not served on the
respondent and only learned about the purported registration of the
judgment from the third party .
[11.2.2] the supplementary affidavits that the Appellants were
seeking to slip into the court file without the leave of the court,
firstly, introduced a completely new cause of action that was not
foreshadowed or covered in any of the previ ous hearings of this
matter and secondly without the leave of Court a quo thus
prejudicing the Respondent. The Appellants did not make a formal
application in terms of Rules 55(1)(a) of the Magistrates Court
Rules which states that :
“Every application shall be brought on notice of motion
supported by an affidavit as to the facts upon which the
applicant relies for relief ”.
[11.2.3] the non-filling of the certificate in terms of Magistrates
Court Rule 43B results in registered judgment b eing a nullity, thus
rendering the purported notice ex-facie invalid, and this honorable
court must not give effect to it. In fact, the Appellant did not ask the
court a quo to condone the late filing of the certificate .
[11.2.4] the amounts stated in the notice are both in Namibian
dollars. However, there is no certificate issued by a bank registered
in South Africa stating the rate of exchange prevailing at the date of
the judgment. There is also no averment made by Ms Pearson’s on
her affidavit when the registration was made to the effect that the
certificate is attached as per Rule 43B of the Magistrates Court
Rules.
[11.2.5] the Respondents reit erate the fact that they were not
served with the actual purported registration of the application by
the Appellant in terms of the Foreign Judgment Act and the Rules.
The first -time the Respondent saw the purported registration of the
foreign judgment was on the 15th of December 2021 when the
same was emailed by the Respondent’s attorneys. This much
should be a common cause from the correspondence between the
Appellant and the Respondent's attorneys on 14 December 2021
and 15 December 2021. Even so, by the admission of the
Appellants , the said purported application which was served on or
about 15 December 2021 did not comply with the provision of the
Act and/or alternatively incomplete as the certificate of the
registered Bank of South Africa was only filed with the Court a quo
on or about 22 December 2021. Therefore, when the Respondents
filed their application to set aside the registration of the Foreign
Judgment on or about 24 December 2021 with the Court a quo,
where within the 21 days period that is sta ted by the Act.
[11.2.6] the Appeal of the Judgment of the High Court of
Namibia i s pending and is still before the Supreme Court of Appeal.
The matter was before the Supreme Court of Appeal on or about 27
March 2023. It is void of the truth that the matter has lapsed. Even
though the Act stipulates that the registration remains effecti ve
irrespective of whether the appeal is still pending, the Respondent
submits that the failure of the court to consider the fact that this
matter is before the highest court in the land in Namibia will be very
prejudicial to the Respondent .
[11.2.7] there is also no merit on the contempt ground of
appeal because of the difficulty to comprehend why the Appellant
has not gone after ABSA to recover what it paid itself after advising
the Respondent that it cannot transact on the account based on the
registrat ion of the foreign judgment. The Respondent is therefore
the victim of ABSA’s conduct hence it brought the application in
December 202 1 because of the bias in giving effect to the
judgment .
[12] The centrality of the argument as submitted by both parties was the rationality of
the Magistrate’s judgment and its order relating to the registration of the foreign
obtained judgment which was declared a ‘nullity’ . Drawing from the afore -grounds of
appea l and as presented during oral argument, Counsel for the App ellant narrowed the
focus to the :
(i) registration of the foreign judgment ;
(ii) Service not being effected ;
(iii) Judgment not signed by the Clerk of Court;
(iv) requirement s of and for the issuing of the Certificate by a
banking institution when the judgment was registered ; and
(v) rules of exchange rate .
[13] At the risk of repetition, these grounds were a determinant of compliance for
registration of the foreign obtained judgment. They also serve as a catalyst against
which to determine the rationality of the Magistrate’s decision in the setting aside of the
registration of the Namibian Judgment. For this Court to ventilate properly the issues
raised, it is also essential to set the tone by reviewing the framework in place relating to
the registration of foreign judgments and the impact it would have in determi ning the
outcome of this matter.
Legal framewo rk
[14] The gist of this case is laid on the status of the Foreign Judgment Act in
regulating the registration of foreign judgments in South Africa . The said registration is
preceded by the application of the Foreign Judgment Act itself. This appeal touches on
the core content of the application of the Foreign Judgment Act itself as entailed in
section 2(1) that deals with the application of the Act which provides that:
(1) This Act shall apply in respect of judgments given in any country
outside the Republic which the Minister has for the purposes of this Act
designated by notice in the Gazette.
[15] This is a guide to the registration and enforcement of foreign judgments wherein
the first determinant is for the court to establish whether the Foreign Judgment Act is
applicable in respect of a n application for the registration of judgment that emanates
from a particular jurisdiction. The determinant is not taken in a ‘ vacuum ’ but consi ders
the broad legal and constitutional framework of the Republic that seek to ensure that
South African courts are to guard against compromising the country’s laws.
[16] The application of the Foreign Judgment Act sets a pathway for the registration of
the foreign judgment and is of direct link to section 3 which provides that:
(1) Whenever a certified copy of a judgment given again st any person by
any court in a designated country is lodged with a clerk of the court in
the Republic, such clerk of the court shall register such judgment in the
prescribed manner in respect of:
(a) the balance of the amount payable thereunder, including the
taxed costs awarded by the court of the designated country;
(b) the interest, if any, which by the law or by order of the court
of the designated country concerned is due on the amount
payable thereunder up to the time of such registration;
(c) the reasonable costs of and incidental to such registration,
including th e costs of obtaining a certified copy of the
judgment.
[17] Having complied with the pre -screening process relating to the applicability of the
Foreign Judgment Act and the rationality of the registration process, the foreign
judgment acquires the status of a South African judgment as provided for in section 4
which reads as follows:
(1) Whenever a judgment has been registered in terms of section 3, such'
judgment sha ll have the same effect as a civil judgment of the court at
which the judgment has been r egistered.
(2) Notwithstanding anything to the contrary in this section contained, a
judgment registered in terms of section 3 shall not be executed before
the expiration of 21 days after service of the notice referred to in
section 3 (2), or until an application in terms of section 5 has been
finally disposed of.
The internal limitation relating to the acquired status of waiting for the e xpiry of the 21
days’ notice illustrates the importance of the post -registration screening process of the
foreign judgment.
[18] It is my considered view that the foundations of the Foreign Judgment Act in
these provisions mean that it is impossible for a foreign judgment to be registered let
alone the prospects of enforcement without compliance with the stated requirements.
The content of these provisions extend authority to the South African courts on good
cause shown and in co mpliance with the requirements to register and enable the
enforcement of a foreign judgment domestically.
[19] In casu , the requirements of section 3 of the Foreign Judgment Act are indicative
of the merited assurance of the local court in ensuring an intense scrutiny on
compliance with the laws that regulate the domestication of foreign judgments. The
application for recognition and the consequent result for enforcement of a foreign
obtained judgment gives credence to an ana lysis of the cause of action that has been
undertaken by the foreign court. It further entails the domestication of such a judgment
through the lens of the basic principles and laws of the Republic.
[20] I am now satisfied that the non -exhaustive legal framework is designed to
eliminate any potential of any party avoiding the jur isdiction of the courts particularly in
taking responsibility for their conducts that have been intensively analysed by that court
of foreign origin. It is this motivation that persuade s me to unlock at the subject of the
appeal in this matter. In essence, the main issue before the Appeal Court was to
determine whether the registered foreign obtained judgment was a ‘nullity’?
Discussion
[21] In this matter , it is imperative that this Court moves from a premise of an
acknowledge ment of guard ing against interference with the decision of the Court a quo
that has been intensely analysed in giving effect to the legal question raised. This
entails the limitation of the role of the Appeal Court to be ‘slow to interfere ’ with the
judgment of the Court a quo unless otherwise is proved. This carries the test endorsed
by Jafta J in Mokate v Vodaco m (Pty) Ltd 2016 (6) BCLR 709 (CC), when the Judge
held:
“Ordinarily appeal courts in our law are reluctant to interfere with factual findings
made by trial courts, more particularly if the factual findings depended upon the
credibility of the witnesses who testified at the trial , [and] the cold record placed
before the appeal court does not capture all that occurred at the trial court . The
disadvantage is that the appeal court is denied the opportunity of observing
witnesses testify and drawing its own inferences from their demeanour and body
language. On the con trary, this is the advantage enjoyed by every trial court ”,
(paras 37 -38).
[22] This is the basis for caution for the Appeal Court to thread carefully and not
interfere in a terrain that is within the competence of the Court a quo. On the other
hand, the Appeal Court may interfere if it ‘emerge d from the record that the trial court
misdirected itself on the facts or that it came to a wrong conclusion, the appellate court
is duty -bound to overrule factual findings of the trial court s o as to do justice to the
case ’, (Makate , para 40 ). I do not intend to go overboard about the limited role of the
Appeal C ourt other than apply ing the ‘needle -eye’ into the legal dispute of this matter .
[23] In foregrounding the substance of this case , it is limited to the registration only
because it is the gist of this application, and all other issues are the consequent result s
that emanate from it. It is also settled law that the registration of a foreign obtained
judgment is limited to the procedural safeguards of the registering country and not the
merits of the case that have been adjudicated elsewhere about the dispute between the
parties and found to have been beyond reproach.
[24] In this regard, there are various grounds of appeal raised by the Appellant, thus,
for purposes of coherence, it is my view that I present the narrow ed focal points as
argued during oral argument as noted above and not deal with the individual grounds as
listed in the notice of appeal .
[25] The grounds of appeal are interdependent, and their core content is on the
registration of the foreign obtained judgment itself. This means that the point of
departure in this application was the registration process itself in terms of the Foreign
Judgment Act and with no other reliance for this process. It is now settled, and I am
persuaded by Corbett J in Jones v Kork 1995 (1) SA 677 (A) that a foreign judgment
and its c onsideration in South Africa must meet certain requirements that will be the
basis for its enforcement and legal standing. In that case, Corbet t J stated that a foreign
judgment although not directly enforceable it will be enforced by our courts unless:
(i) that the court which pronounced the judgment had jurisdiction to
entertain the case according to the principles recognised by our law
with reference to the jurisdiction of foreign courts (sometimes
referred to as 'international jurisdiction or competenc e');
(ii) that the judgment is final and conclusive in its effect and has not
become superannuated.
(iii) that the recognition and enforcement of the judgment by our Courts
would not be contrary to public policy;
(iv) that the judgment was not obtained by fraudulent means;
(v) that the judgment does not involve the enforcement of a penal or
revenue law of the foreign State; and
(vi) that enforcement of the judgment is not precluded by the provisions
of the Protection of Businesses Act 99 of 1978, as amended....
Apart from this, our Courts will not go into the merits of the case
adjudicated upon by the for eign court and will not attempt to review
or set aside its finding of fact or law," ( page 10 ; Olsen J in Elan
Boulevard (Pty) Limited v T Mahomed Case No: 12451/2014).
[26] Followed by these requirements which entailed the cause of adjudicative acti on
for recognition , Corbett J contextualised the substance of the judgment in that it is
characterised by:
(i) Finality and is not susceptible to alteration by the Court of first
instance.
(ii) Definitive ri ghts of the parties ;
(iii) The effect of disposing at least a substantial portion of the relief
claimed , (page 11 and all footnotes omitted).
[27] For the Appellant, considering these requirements, the Foreign Judgment Act has
found application in terms of section 2(1) and the registration as envisaged in section
3(1). In this instance, the registration by the Clerk of the Court after having the copy of
the judgment carries the substance of compliance with the Foreign Judgment Act. The
Namibian Judgment delivered on 29 October 2020 under case number: HC -MD-CIV-
MOTGEN -2019/00105 was registered on 26 November 2021 against the Respondent
by the Clerk of the Court . This was indicated in the Court’s stamp date and is a clear
indication of the signature and certification of the judgment as in compliance with
section 3 of the Foreign Judgment Act. This contention is concretised by the substance
of Rule43B (1) of the Magistrates Court Rules which provides that ‘… registrar or clerk of
the court shall register that judgment by numbering it with a consecutive number for the
year during which it is filed and by noting the particulars in respect of the judgment
referred to … on the case cover’. ‘
[28] It is my express conviction that the intersection of section 3 (1) of the Foreign
Judgment Act and Rule43 B(1) of the Magistrates Court Rules illustrates the adherence
to the regulatory framework on registering a foreign obtained judgment that is not
clouded by irregularities. Particularly in this cas e, the Foreign Judgment Act determines
where the registration is to be effected . Herein , it was done at the Randburg
Magistrate ’s Court by the Clerk of the Court on 26 November 2021. The Court’ s stamp
date is without doubt, demonstrates the registration of the judgment.
[29] The registration also prescribes the number of calendar days for the judgment
debtor to be served with the notice of registration. In this case, as is required by the
Foreign Judgment Act, the 21 calendar days which are counted from the date of the
order cannot be discarded in lieu of Rule 9(3)(e) of the Magistrate Court Rules. The
intersection o f sections 3(2) and 5 (2) of the Foreign Judgment Act was relegated to the
sphere of irrelevance as not constituting a framework for ‘service notice’ . The Magistrate
exclusively relied on Rule 9(3)(e) of the Magistrate Courts Rules with the intersection of
the Foreign Judgment Act’ s provisions finding no application because of the misplaced
view that the Foreign Judgment Act does not provide for a coherent process of service .
It is my view that the Rule 9(3)(e) could not be applied and interpreted independently of
the provisions of the Foreign Judgment Act in determining adherence to the quality of
the needed notice of service. I further consider that although the date of receipt and
lodging of the application is not excessiv e, the delay could not be detached from the
basic principle envisaged in the Foreign Judgment Act. The reliance on the common law
principle of ‘condonation’ which require the ‘good c ause ’ to be shown for the delay whilst
the application is entirely focused on the content of the registration of the Foreign
Judgment Act will render the lat ter Act not having ‘legal cl utches ’ to ensure
advancement of its principles. I am not persuaded that the few days are justified in the
circumstances because the basis of the application was not purely on registration of the
judgment but an indirect avoidance to pay the debt due. It touched on taking
accountability for the merited responsibility found by that court of foreign origin.
[30] The fulfilment of the said requirements serves as a means for a just and
equitable order in granting the registration of the foreign judgment. The setting aside of
the recognition of a foreign judgment entailed a ‘sledgehammer approach’ and missed
an opportunity to interrogate the implications of section s 3(1) and 5(1) of the Foreign
Judgment Act in the dispute. The se provisions present an opportunity to guard against
the avoidance of accountability by the Respondent through the ‘technical eye’ of
registrat ion whilst an independent court of a designated country, found the merits of the
claim giving legitimacy to the legal question raised in the dispute . It is not for the
Magistrate to adopt ‘a good -person approach’ in the light of the impact of section 5(1) of
the Foreign Judgment Act in the general overhaul of legal regulation in South Africa.
[31] Secondly, the issuing of the certificate was another misplaced quest for the
setting aside of the Namibian Judgment. In this instance, Rule43B (2)(b) of the
Magis trate’s Court Rules lays the framework for a proof of exchange rates between
countries to be stated as a foundational requirement that would legitimise the
registration of the judgment. This also means the proper calculations of the exchange
rates to be correctly inscribed in the issued certificate. In this matter, it is evident that the
calculated amount t o service the debt was not in dispute . Besides, to be further
elaborated in the latter ground, there is monetary commonality between the two
countries and therefore, the certificate issue finds no relevance . The Respondent
adopts a ‘delaying tactic’ in ser vicing the debt which undermines the general principles
of the interests of justice on the finality and implementation of the registration and
enforcement of the judgment . As a critical legal and professional body for the well -being
of the adjudicative pro cess, the delaying tactics undermines the merited analysis of the
facts of the case in the granting of the order by the foreign court . In the context of the
common exchange rates between South Afr ica and Namibia, the filing of the certificate
later by the Appellant does not render the registration a ‘nullity’ . Therefore , in fact and in
law, the certificate has no place in the adjudicative process of this matter.
[32] Thirdly, the argument about t he exchange rates between South Africa and
Namibia does not have a bearing in this case because of the commonality between the
two countries. Section 1 of the Bank of Namibia Act 1 of 2020 defines the area of
commonality in this regard as fol lows:
“common monetary area” means the area in which exchange and
monetary arrangements are co -ordinated in accordance with the
Multilateral Monetary Agreement concluded on 6 February 1992 between
Namibia, the Kingdom of Lesotho, the Republic of South Africa and the
Kingdom of Swaziland.
[33] On a plain reading of the provision it entails the shared aims, and the Clerk of the
Court was abreast of this requirement and needed not to go any further to enquire about
the exchange rates in -between these countries. The commonality is traceable to the
Multilateral Monetary Agreement that was entered on 6 February 1992 that pegged the
rate at 1:1. This then meant this Court, as the Counsel for the Appellant argued, is to
draw lessons as prescribed by 1(1) and 1(2) of the L aw of Evidence Act 45 of 1988 (“the
Evidence Act”), and take judicial notice of the Multilateral Monetary Agreement as a
reliable source in endorsing that the two countries do not have different pegged
exchange rates. I am therefore persuaded by the Appellant’s argument that the quest
for a certificate of the exchange rate was disingenuous.
[34] This application gives due regard to the cross -border multi -lateral adjudicative
processes w herein the foreign court deals with the merits and substance of the dispute
and make an order in that regard. On the other hand, the local court is limited to
consider the satisfaction of the requirements for the registration as prescribed in
domestic laws, in this instance, the Foreign Judgment Act. Therefore, the cross -border
process is an acknowledgment of the scope of functioning of each of the judiciaries.
[35] Therefore, I am satisfied in this case that a reasonable care and diligence was
applied by the Clerk of the Court in the registration of the Namibian Judgment . The
language of the Foreign Judgment Act as applied in this case is also to be infused in the
framework of the Magistrate Courts Rules . The interdependence of the rules governing
the r egulatory process is designed to serve a common goal in eliminating irregularities
in the registration of foreign obtained judgment s. It is my view th at no prescriptive
regulatory framework should take precedence over the other as the Magistrate did in
this case by the heavy reliance o n the Magistrate Court Rules with Foreign Judgment
Act provision s being considered as of no application.
[36] As noted above, i t is settled law that the Appeal C ourt is generally constrained to
interfere with the judgments and orders of the Court a quo . However, this rule may be
relaxed where there is a glaring misdirection when interference by the Appeal Court can
be justified. In this case the Magistrate committed a misdirect ion because of the
invalidation of the registration of the judgment due to the exclusive use and
consideration of the legal principles that are applicable in resolving the service notice of
the dispute . In addition, the Magistrate misapplied the interpretation of the common
exchange laws between South Africa and Namibia. This then rendered the principles of
accountability finding no relevance regarding the registration of the Namibian Judgment
which is the substance of the dispute between the parties.
[37] It is also of significance that I consider the issue of costs in this application. It is
my understanding that, ordinarily, the costs will follow the results which may be
determine d at the discretion to be exercised by the court. The Respondent having filed
records in opposing the application and turned around not to attend court to argue the
case , has undermined the due processes of this Court. With the scant resources and
the constraint s upon which not only this Court functions it is inexcusable that with
readiness to proceed the whole process could have collapsed by non-appearance. I am
of the view that the Respondent should bear the costs of this application as to be
endorsed below.
[38] Accordingly, the following order is made:
[38.1] The appeal is upheld.
[38.2] The order granted by Magistrate Booysen on 7 December 2022
under case number 28828/2021 is set aside and is replaced with an order
in the following terms:
“The application is dismissed with costs, such costs to include the
costs of two counsel where so em ployed .”
[38.3] The Respondent is to pay the costs of the appeal, including the
costs of two counsel, on scale B of Uniform Rule 67.
___________________________
N NTLAMA -MAKHANYA
ACTING JUDGE OF THE HIGH COURT
JOHANNESBURG
I AGREE
___________________________
MV NOKO
JUDGE OF HIGH COURT: JOHANNESBURG
Delivery: This judgment is issued by the Judge whose name app ears herein and is
submitted electronically to the parties /legal representatives by email. It is also
uploaded on CaseLines, and its date of delivery is deemed 25 February 2025 .
Date of Hearing: 28 January 2025
Date Delivered : 25 February 2025
Appearance s:
Counsel for Appellant : Adv R Heaco te Sc
Instructing Attorneys : Bowman Gilfillan Inc
Respondent: Met Bank Limited