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[2013] ZACC 22
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Government of the Republic of Zimbabwe v Fick and Others (CCT 101/12) [2013] ZACC 22; 2013 (5) SA 325 (CC); 2013 (10) BCLR 1103 (CC) (27 June 2013)
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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 101/12
[2013] ZACC 22
In the matter between:
GOVERNMENT OF THE
REPUBLIC OF ZIMBABWE
..........................................................................
Applicant
and
LOUIS KAREL FICK
..........................................................................
First
Respondent
RICHARD ETHEREDGE
...............................................................
Second
Respondent
WILLIAM MICHAEL CAMPBELL
..................................................
Third
Respondent
PRESIDENT OF THE REPUBLIC
OF SOUTH AFRICA
........................................................................
Fourth
Respondent
Heard on :
28 February 2013
Decided on : 27 June 2013
JUDGMENT
MOGOENG CJ (
Moseneke DCJ,
Froneman
J, Khampepe J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der
Westhuizen J and (Zondo J
except [44] to [46])
concurring):
Introduction
For the right or wrong reasons, or a combination of both, Africa has
come to be known particularly by the western world as the
dark
continent, a continent which has little regard for human rights, the
rule of law and good governance. Apparently driven
by a strong
desire to contribute positively to the renaissance of Africa, shed
its southern region of this development-inhibiting
negative image,
coordinate and give impetus to regional development, Southern
African States established the Southern African
Development
Community (SADC) with special emphasis on, among other things, the
need to respect, protect and promote human rights,
democracy and the
rule of law.
1
To ensure that no SADC Member State is able to undermine the
regional development agenda by betraying these noble objectives
with
impunity, a regional Tribunal (Tribunal) was created to entertain,
among other issues, human rights related complaints particularly
by
citizens against their States.
2
It is to this Tribunal that the respondent farmers (farmers) brought
their land dispossession dispute with the applicant, the
Government
of the Republic of Zimbabwe (Zimbabwe), for determination. They did
so because their farms were expropriated by Zimbabwe
in terms of its
Constitution, which denied them compensation for their land and
access to court.
The Tribunal decided in favour of the farmers.
3
When Zimbabwe refused to comply with the decision, the aggrieved
farmers again approached the Tribunal for further relief. The
Tribunal referred the matter to the Summit
4
for appropriate action to be taken and granted a costs order against
Zimbabwe (costs order). Dissatisfied with a disregard for
even this
order, the farmers applied successfully to the North Gauteng High
Court, Pretoria (High Court) for the registration
and enforcement of
the costs order, to facilitate execution against Zimbabwe’s
property in South Africa.
Registration
of the costs order led to an unsuccessful appeal to the Supreme
Court of Appeal by Zimbabwe. Aggrieved by the dismissal
of the
appeal, Zimbabwe approached this Court with an application for leave
to appeal. We are now required to determine whether
the High Court
had the jurisdiction to enforce the costs order made by the
Tribunal.
SADC and its legal instruments
SADC was established in terms of the Treaty of the Southern African
Development Community
5
(Treaty) that was signed on 17 August 1992 in Windhoek, Namibia, by
the Heads of State or Government of ten Southern African
States.
6
Zimbabwe ratified the Treaty on 17 November 1992,
7
as confirmed by its Attorney-General.
8
And the Treaty came into force on 30 September 1993.
9
South Africa joined SADC by acceding to the Treaty on
29 August 1994. Our Senate
10
and National Assembly approved the Treaty on 13 and 14 September
1995 respectively.
The purpose for the establishment of SADC was to achieve certain
regional developmental goals. Some of the key objectives are
set out
in the Preamble to the Treaty as: a collective realisation of the
progress and well-being of the peoples of Southern
Africa; promotion
of the integration of the national economies of Member States; the
need to mobilise international resources
and secure international
understanding, support and cooperation; and, more importantly, “the
need to involve the peoples
of the Region centrally in the process
of development and integration, particularly through the guarantee
of democratic rights,
observance of human rights and the rule of
law”. Member States bound themselves in terms of article 4(c)
of the Treaty
to act in accordance with the human rights,
democratic and rule of law principles.
They
undertook to adopt measures to promote the achievement of the
objectives of SADC and to “refrain from taking any measure
likely to jeopardise the sustenance of its principles, the
achievement of its objectives and the implementation of the
provisions
of this Treaty.”
11
Added to this was the responsibility to take all the necessary steps
to accord the Treaty the force of national law
12
and a commitment to “cooperate with and assist institutions of
SADC in the performance of their duties.”
13
One of those institutions to be cooperated with and assisted was the
Tribunal.
14
The
Tribunal was established to ensure adherence to and the proper
interpretation of the Treaty as well as the adjudication of
such
disputes as may be referred to it.
15
The composition, powers, functions, procedures and other related
matters were subsequently provided for in a Protocol pertaining
to
the Tribunal
16
(Tribunal Protocol).
The coming into effect of the Tribunal Protocol depended on its
ratification by two-thirds of the Member States.
17
It appears that the requisite number of ratifications was not
obtained. As a result, the Tribunal Protocol did not come into
operation. This hurdle was overcome through the amendment of the
Treaty by the SADC supreme policy-making body known as the Summit,
which comprises the Heads of State or Government of SADC Member
States. It has the power to amend the Treaty. And such amendment
becomes operative only after adoption by the prescribed
three-quarters of all Members of the Summit.
18
The
amendment alluded to above was effected by the Summit in terms of
the Agreement Amending the Treaty of the Southern African
Development Community
19
(Amending Agreement). Article 16(2) of the Treaty was amended to
provide for the Tribunal Protocol to be an integral part of
the
Treaty, obviously subject to the adoption of the Amending Agreement.
This was notwithstanding the provisions of article 38
of the
Tribunal Protocol which required ratification of the Tribunal
Protocol by two-thirds majority before it could come into
operation.
20
This amendment, therefore, removed the ratification requirement.
Consequently,
the Amending Agreement came into force on the date of its adoption
by three-quarters of all Members of the Summit.
21
That happened on 14 August 2001 in Blantyre, Malawi, where it
was signed by 14 Heads of State or Government including Zimbabwe
and
South Africa. Both South Africa and Zimbabwe are thus bound by the
amended version of the Treaty which incorporated the Tribunal
Protocol (Amended Treaty).
Litigation background
It was about a decade after SADC had set the above objectives and
established institutions that could enhance human rights and
the
rule of law that Zimbabwe amended its Constitution to facilitate
agrarian reform.
22
The amendment caters for the compulsory State acquisition of all
agricultural land identified by the State’s acquiring
authority.
23
Compensation is not payable for the agricultural land acquired in
this manner but only for the improvements effected on the land.
In
addition, a person who has a right or interest in the expropriated
land is barred from approaching any domestic court of Zimbabwe
to
challenge the acquisition.
Numerous
farmers were dispossessed of their agricultural land in terms of
this agrarian reform policy. And they were aggrieved.
In the Tribunal
In
2007 the farmers, together with 76 others who were also affected by
Zimbabwe’s agrarian reform policy, turned to the
Tribunal to
challenge the policy’s implementation. The Tribunal decided in
their favour and ordered Zimbabwe to protect
the ownership,
occupation and possession of those of their farms that had been
compulsorily acquired but from which farmers had
not yet been
evicted and pay compensation for the expropriated farms, from which
farmers had already been evicted.
Zimbabwe
refused to comply with the Tribunal’s decision. The farmers
referred that non-compliance to the Tribunal for relief.
It found
Zimbabwe to have failed to comply with the judgment, referred the
matter to the Summit for appropriate action
24
and granted the costs order against Zimbabwe. When the costs order
was also not complied with, the farmers then approached the
High
Court to have it enforced in South Africa.
In the High Court
Two
related orders were granted by the High Court. The first order was
leave to commence proceedings by edictal citation granted
by Tuchten
AJ in an unopposed application (service order).
25
It was on its strength that the application to enforce the costs
order was served on the offices of the Zimbabwean Attorney-General
and the administrative head office of the Zimbabwean Ministry of
Justice in Harare. In response, Zimbabwe filed a notice of intention
to oppose which it subsequently withdrew on the basis that it was a
sovereign State immune from the jurisdiction of South African
courts. In the second order, Rabie J ordered the registration
of the costs order, thus facilitating its enforcement in South
Africa (registration order).
26
Consequently, a writ of execution was issued authorising the
attachment and sale in execution of certain properties owned by
Zimbabwe in Cape Town, South Africa, to satisfy the costs order.
Zimbabwe
then applied for the suspension of the farmers’ writ of
execution and the rescission of the service and registration
orders.
The three applications were consolidated and were all dismissed by
Claassen J.
27
This was followed by an appeal to the Supreme Court of Appeal.
In the Supreme Court of Appeal
Zimbabwe’s challenge to the service order was premised on its
sovereign immunity against suits in South African courts
in terms of
the Foreign States Immunities Act
28
(Immunities Act). The grant of the registration order was assailed
on two grounds. First, that the Tribunal did not have jurisdiction
to entertain the farmers’ challenge to Zimbabwe’s land
reform policy.
29
Second, that the High Court lacked jurisdiction because
the Treaty and the Tribunal Protocol were not approved
by
the South African Parliament
30
and could not therefore enforce the costs order.
The
Supreme Court of Appeal, per Nugent JA, held that Zimbabwe had
waived its immunity by “expressly submitting itself to
the
SADC Treaty and the [Tribunal] Protocol.”
31
It held further that the Amending Agreement was adopted by the
prescribed majority, including Zimbabwe.
32
It added that the Treaty, together with the Tribunal Protocol which
became part of the Treaty as a result of the amendment, came
into
effect in 2001.
33
For these reasons, the Supreme Court of Appeal concluded that
the Tribunal Protocol did not need to be ratified by Member
States to be binding. It dismissed the argument that the Tribunal
lacked jurisdiction on the additional basis that Zimbabwe’s
submission to the Tribunal’s jurisdiction was sufficient
for the purpose of the enforcement of the costs order in
South
Africa.
The
Court concluded that Zimbabwe failed to show that it had a bona fide
defence and reasonable prospects of success against either
the
service or registration order, which is a requirement for the
rescission of a judgment. It thus held that the Amended
Treaty,
which incorporated the Tribunal Protocol, was binding on Zimbabwe
and conferred jurisdiction on the Tribunal over the
farmers’
claim. It added that our common law on the enforcement of foreign
judgments applied to international tribunals
and that the costs
order was enforceable in South Africa. The appeal was
dismissed. Aggrieved by this outcome, Zimbabwe
approached this Court
for leave to appeal.
Leave to appeal
This application concerns the enforcement of the costs order granted
by the Tribunal against Zimbabwe. The origin of that costs
order is
a dispute that implicates human rights and the rule of law, which
are central to the Treaty and our Constitution. A
constitutional
matter does, therefore, arise here in relation to access to courts
34
which is an element of the rule of law.
35
Zimbabwe
argues that the Tribunal did not have the jurisdiction to entertain
the dispute that led to the costs order. It also
contends that the
High Court lacked the jurisdiction to order the registration of the
costs order made by the Tribunal. The objection,
as indicated
earlier, is grounded on Zimbabwe’s immunity from the
jurisdiction of our courts as a foreign State and South
Africa’s
alleged non-compliance with our constitutional requirements in
relation to giving a binding effect to international
agreements.
This is an important matter of public interest on which this Court
should pronounce. Moreover, the contentions advanced
by Zimbabwe are
eminently arguable. It is thus in the interests of justice to hear
the dispute. Leave to appeal should be granted.
Issues
The
main issue is whether South African courts have the jurisdiction to
register and thus facilitate the enforcement of the costs
order made
by the Tribunal against Zimbabwe. The following subsidiary issues
are relevant to the determination of the main issue:
(a) Rescission;
(b) The binding effect, on South Africa, of the Amended Treaty, which
incorporates the Tribunal Protocol;
(c) The immunity of foreign States from civil litigation in South
Africa;
(d) The application of the Enforcement of Foreign Civil Judgments
Act
36
(Enforcement Act); and
(e) The enforcement of foreign judgments in terms of the common law.
Rescission
Unlike
in the Supreme Court of Appeal, Zimbabwe does not raise the service
order as an issue in its application in this Court
and it is not
dealt with except in passing in its heads of argument. It is
therefore not necessary to deal with this issue, suffice
it to say
that it was correctly dismissed by the Supreme Court of Appeal.
37
What remains to be addressed is the rescission of the registration
order.
Scant
reference is made to rescission of the registration order in
Zimbabwe’s papers. Based on
Promedia Drukkers and Uitgewers
(Edms) Bpk v Kaimowitz and Others
,
38
Zimbabwe contends that it does not have to show good cause, which
entails a reasonable explanation for its default and that it
has a
bona fide defence to the orders granted in its absence, to be
entitled to the rescission of the High Court orders. And
the third
rescission requirement to be met is of course that Zimbabwe must
show reasonable prospects of success. Zimbabwe contends
that it need
not show good cause because, (i) there was an irregularity in the
proceedings; (ii) the High Court lacked competence
to make the
order; and (iii) the High Court was unaware of facts which, if
known, would have precluded the granting of the order.
As
the Supreme Court of Appeal correctly held, the first two
requirements for rescission need not be dealt with because no
explanation
was proffered to meet them.
39
Only prospects of success require this Court’s attention. And
the fate of this requirement, which is an integral part of
the
application for rescission, depends on the outcome of the challenge
to the jurisdictional capacity of both the Tribunal and
the High
Court. A dismissal of the jurisdictional challenge would inevitably
lead to the collapse of the very superstructure
that sustains
Zimbabwe’s rescission application. I will return to this
matter towards the end of the judgment.
Was the Treaty put into operation in terms of the Constitution?
Our Constitution creates a mechanism in terms of which international
agreements can be ratified or acceded to and domesticated.
Section
231 of the Constitution provides:
“
(1)
The negotiating and signing of all international agreements is the
responsibility of the national executive.
(2) An international agreement
binds the Republic only after it has been approved by resolution in
both the National Assembly and
the National Council of Provinces,
unless it is an agreement referred to in subsection (3).
(3) An international agreement
of a technical, administrative or executive nature, or an agreement
which does not require either
ratification or accession, entered into
by the national executive, binds the Republic without approval by the
National Assembly
and the National Council of Provinces, but must be
tabled in the Assembly and the Council within a reasonable time.
(4) Any international agreement
becomes law in the Republic when it is enacted into law by national
legislation; but a self-executing
provision of an agreement that has
been approved by Parliament is law in the Republic unless it is
inconsistent with the Constitution
or an Act of Parliament.
(5) The Republic is bound by
international agreements which were binding on the Republic when this
Constitution took effect.”
The implications of compliance with this
section were articulated by Moseneke DCJ and Cameron J in
Glenister
v President
of the Republic of South Africa and Others
40
as follows:
“
Now
plainly there are many ways in which the State can fulfil its duty to
take positive measures to respect, protect, promote and
fulfil the
rights in the Bill of Rights. This court will not be prescriptive as
to what measures the State takes, as long as they
fall within the
range of possible conduct that a reasonable decision-maker in the
circumstances may adopt. A range of possible
measures is therefore
open to the State, all of which will accord with the duty the
Constitution imposes, so long as the measures
taken are reasonable.
And it is here where the courts’
obligation to consider international law when interpreting the Bill
of Rights is of pivotal
importance. Section 39(1)(b) states that when
interpreting the Bill of Rights a court ‘must consider
international law’.
The impact of this provision in the present
case is clear, and direct. What reasonable measures does our
Constitution require the
State to take in order to protect and fulfil
the rights in the Bill of Rights? That question must be answered in
part by considering
international law. And international law, through
the inter-locking grid of conventions, agreements and protocols we
set out earlier,
unequivocally obliges South Africa to establish an
anti-corruption entity with the necessary independence.
That is a duty this country
itself undertook when it acceded to these international agreements.
And it is an obligation that became
binding on the Republic, in the
international sphere, when the National Assembly and the NCOP by
resolution adopted them, more
especially the UN Convention.
”
41
(Footnote omitted.)
Zimbabwe
argues that our Parliament did not approve the Treaty in terms of
section 231 of the Constitution and that that non-compliance
is a
bar to the enforcement of the costs order in South Africa. For these
reasons, Zimbabwe concludes that orders of the Tribunal
cannot be
registered and enforced by South African courts.
This
argument lacks merit. Our Parliament approved the Treaty in 1995.
42
The Treaty and the Amended Treaty are thus binding on South Africa,
at least on the international plane.
Article 32(2)
of the Tribunal Protocol imposes a legal obligation on South Africa
to take all legal steps necessary to facilitate
the execution of the
decisions of the Tribunal
43
created in terms of the Treaty that our Parliament has approved.
Immunity
Zimbabwe ordinarily enjoys immunity against civil suits in South
Africa in terms of section 2 of the Immunities Act. Section
2(1)
provides that “[a] foreign state shall be immune from the
jurisdiction of the courts of the Republic except as provided
in
this Act or in any proclamation issued thereunder.”
Section 3(1) of the Immunities Act, however, provides that
immunity shall be forfeited in proceedings in respect of which the
State expressly waived its immunity.
Zimbabwe contends that none of the exceptions to sovereign immunity
applies to it in this matter. This cannot be correct. Article
32 of
the Tribunal Protocol imposes an obligation on Member States to take
all steps necessary to facilitate the enforcement
of judgments and
orders of the Tribunal. It also makes these decisions binding and
enforceable “within the territories
of the States concerned.”
This is provided for in these terms:
“
ARTICLE
32
ENFORCEMENT AND EXECUTION
1. The law and rules of civil
procedure for the registration and enforcement of foreign judgments
in force in the territory of the
State in which the judgment is to be
enforced shall govern enforcement.
2. States and institutions of
the Community shall take forthwith all measures necessary to ensure
execution of decisions of the
Tribunal.
3. Decisions of the Tribunal
shall be binding upon the parties to the dispute in respect of the
particular case and enforceable
within the territories of the States
concerned.
4. Any failure by a State to
comply with a decision of the Tribunal may be referred to the
Tribunal by any party concerned.
5. If the Tribunal establishes
the existence of such failure, it shall report its finding to the
Summit for the latter to take appropriate
action.”
Subject to compliance with the law on the enforcement of foreign
judgments in force in South Africa, Zimbabwe is duty-bound to
act in
accordance with the provisions of article 32. That obligation
stems from its ratification
44
of the Treaty and the adoption of the Amending Agreement. For the
sake of completeness, the Tribunal Protocol is, in terms of
the
Amending Agreement, to be treated as part of the original Treaty.
In
sum, Zimbabwe’s agreement to be bound by the Tribunal
Protocol, including article 32, constitutes an express waiver in
terms of section 3(1) of the Immunities Act. It is a waiver by
Zimbabwe of its right to rely on its sovereign immunity from the
jurisdiction of South African courts to register and enforce
decisions of the Tribunal made against it.
Application of the Enforcement Act
Foreign
civil orders may be enforced in this country in terms of the
Enforcement Act. It is however not possible to do so in this
matter
owing to non-compliance with section 2(1) of the Enforcement Act
which provides:
“
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
.”
The
Minister has not made any designation contemplated by this section
to qualify the order made by the Tribunal for registration
in terms
of the Enforcement Act. Besides, the requirement of “judgments
given in any country” arguably places the
costs order outside
the ambit of this section because it did not make its order as a
component of the domestic court system of
“any country”.
More importantly, the Enforcement Act applies only to Magistrates’
Courts.
45
It follows that the Enforcement Act does not apply to this matter.
The common law on enforcement
Principles
What remains to be explored is whether the High Court had the
jurisdiction under the current common law to enforce the costs
order
against Zimbabwe. The jurisdictional requirements for the
enforcement of foreign orders were reiterated in
Purser v Sales
.
46
Mpati AJA said, in relevant part:
“
[T]he
present position in South Africa is that a foreign judgment is not
directly enforceable, but constitutes a cause of action
and will be
enforced by our Courts provided (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 competence’); (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 Business Act 99 of 1978, as
amended.
. . .
The principles recognised by our
law with reference to the jurisdiction of foreign courts for the
enforcement of judgments sounding
in money are:
1. at the time of the
commencement of the proceedings the defendant . . . must
have been domiciled or resident within
the State in which the foreign
court exercised jurisdiction; or
2. the defendant must have
submitted to the jurisdiction of the foreign court.”
It is
not in dispute that the costs order is final and that it was not
obtained fraudulently, it does not involve the enforcement
of the
revenue law of Zimbabwe and its enforcement is not precluded by the
Protection of Businesses Act.
47
The enforcement of the costs order is also not against public
policy, of which our Constitution is an embodiment.
48
For our Constitution promotes democracy, human rights and the rule
of law.
49
The questions that remain are whether: (a) the Tribunal had
jurisdiction; (b) the costs order constitutes a “foreign
judgment” that can be enforced in terms of our common law; and
if not, (c) the common law needs to be developed.
The jurisdiction of the Tribunal
One
of the common law requirements for the enforcement of a judgment of
a foreign court is that that foreign court must have had
jurisdiction. And this is an additional basis on which Zimbabwe
attacks the decision of the Supreme Court of Appeal. It contends
that the Tribunal itself did not have jurisdiction over Zimbabwe, to
decide on the validity of non-compensable expropriation
and the
subsequent costs order sought to be enforced in South Africa. The
objection is grounded on the alleged failure by two-thirds
of the
SADC Member States to ratify the Tribunal Protocol and
three-quarters to adopt the Amending Agreement. Zimbabwe relies
also
on the alleged non-compliance with section 231 of the Constitution
to facilitate the application of the Treaty and the Tribunal
Protocol in South Africa, which was dismissed as being without merit
above. The last objection is that these international agreements
do
not bind Zimbabwe because it did not ratify them as required by
section 111B of its Constitution.
50
These
objections to the Tribunal’s jurisdiction are different from
those raised by Zimbabwe in the Tribunal.
51
The Tribunal had to, and did, confine itself to addressing only the
jurisdictional challenges raised by Zimbabwe. They were essentially
that the Tribunal lacked the jurisdiction to rule on the validity of
the alleged human rights violations or agrarian reforms
in Zimbabwe,
having regard to the provisions of the Treaty and its protocols. The
reason advanced in support of this objection
was that SADC did not
have its own protocols or standards on human rights or agrarian
reform against which Zimbabwe’s actions
could be measured and
that it was impermissible for the Tribunal to impose provisions or
norms and standards of other international
treaties on SADC.
Zimbabwe
did not then object to the Tribunal’s jurisdictional capacity
as such. It objected merely to the Tribunal’s
power to rule on
the validity of a specific dispute, the land reform programme
carried out by Zimbabwe, in the absence of SADC
protocols or
standards on which to ground its decision. By implication, Zimbabwe
asserted that although the Tribunal generally
had the jurisdictional
capacity to entertain disputes brought by citizens or residents
against Zimbabwe, it would not have jurisdiction
if the dispute
involved an issue for which no provision was made in any of the SADC
legal instruments. It was jurisdiction over
an issue, not the very
authority of the Tribunal to entertain disputes within the region,
that was objected to. Zimbabwe’s
objection was not that the
precondition for the Tribunal’s jurisdictional competence,
like ratification, adoption or domestication
of the Treaty or the
Tribunal Protocol, had not yet been met.
This
would explain why, in addressing the objection to jurisdiction, the
Tribunal did not consider ratification of or accession
to the Treaty
and Tribunal Protocol and the adoption of the Amending Agreement or
their domestication by Member States or Zimbabwe
in particular. It
focused on article 4(c) of the Treaty
52
which obliges SADC Member States to act in accordance with the human
rights, democratic and rule of law principles. The objections
raised
by Zimbabwe lack merit and Zimbabwe had in any event submitted to
the jurisdiction of the Tribunal by reason of its participation
in
the proceedings before the Tribunal.
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, in my view, 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.
This insistence on consistency is logical, and informed
by the same
principle that enjoins a party to take on appeal the same case that
the trial court heard. This is designed to afford
an institution
like the Tribunal the opportunity to consider and address the same
deliberate choice of jurisdictional challenges,
relied on in all
other courts subsequently called upon to consider the same matter.
This approach ensures an orderly and just
way of dealing with
perceived jurisdictional hurdles.
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.
A
jurisdictional challenge based only on certain specific grounds
amounts to a submission to jurisdiction, subject to the dismissal
of
those specific concerns raised. In other words, absent those
objections, it is to be accepted that there was a submission
to that
court’s jurisdiction. And that submission to jurisdiction must
always stand. Once a litigant has submitted to the
jurisdiction of a
court, ordinarily, it may not in later or appellate proceedings,
dispute that jurisdiction. By parity of reasoning,
once a litigant
has chosen specific grounds for impugning the jurisdiction of a
court, it may not in later proceedings attack
the jurisdiction of
the first court on new or fresh grounds.
No
ratification was required for the Amended Treaty, and by extension
the Tribunal Protocol, to bind Member States. Since the
Treaty had
already been ratified by the prescribed majority, including
Zimbabwe, acceded to by South Africa and duly approved
by our
Parliament, the Tribunal Protocol that was subsumed under it, became
immediately operational upon adoption by the requisite
majority. The
Tribunal therefore had jurisdictional competence over Zimbabwe at
all times material hereto. When the matter that
gave rise to the
costs order was filed by the farmers in 2007 and the costs order was
later made, the Tribunal Protocol had already
been operational for
about six years.
The Tribunal
had jurisdiction over all disputes relating to the interpretation
and application of the Treaty
53
and over disputes between Member States and natural or legal
persons.
54
This was subject to prior exhaustion of all available remedies
unless otherwise domestically unavailable.
55
Member States are required to take all measures necessary to ensure
execution of the decisions of the Tribunal.
56
Provision is also made for the enforcement of the decisions of the
Tribunal, the role of Member States in that regard and the
binding
effect of those decisions.
57
What all of these provisions boil down to, is that both Zimbabwe and
South Africa effectively agreed that domestic courts in
the SADC
countries would have the jurisdiction to enforce orders of the
Tribunal made against them.
In
terms of our common law on jurisdiction, a foreign court or tribunal
which would otherwise not have had jurisdiction over a
party, would
be clothed with jurisdiction if that party submits to the
jurisdiction of that forum.
58
In this case, having otherwise recognised and accepted the
Tribunal’s jurisdiction but for the alleged absence of
standards
on human rights or agrarian reform, Zimbabwe did,
according to our law, submit to the Tribunal’s jurisdiction.
Broadly
speaking, this meets the first common law jurisdictional
requirement.
59
Additionally,
the Amended Treaty incorporating the Tribunal Protocol binds
Zimbabwe and South Africa in the international sphere.
The signing
of the Treaty by the Heads of State and its approval by our
Parliament and that of Zimbabwe, the adoption of the
Amending
Agreement by more than three-quarters of Members of the Summit, thus
rendering the Tribunal Protocol an integral part
of the Treaty,
bears out this conclusion. I am satisfied that the Tribunal had
jurisdiction at the time when the Tribunal ruling
and the costs
order were made. But this does not address the jurisdictional
competence of South African courts to enforce an
order of a regional
or international tribunal in terms of the common law.
The need to develop the common law
That
a foreign court had jurisdiction in terms of the laws of its country
does not, without more, clothe our courts with the jurisdiction
to
enforce a judgment of that foreign court.
60
And of the common law jurisdictional requirements to be met in this
case to enable our courts to entertain applications for the
recognition and enforcement of foreign orders, the most relevant
are: (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.
61
Arguably,
the enforcement provided for in our common law relates only to
judgments or orders made by a domestic court of a particular
foreign
country. If international courts like the Tribunal were within the
contemplation of our courts when they developed the
common law and
laid down these foreign judgment-enforcement requirements, the
condition that the defendant “must have been
domiciled or
resident within the State in which the foreign court exercised
jurisdiction” would have been differently or
more
appropriately and inclusively crafted. This would have been done to
provide for or accommodate regional or international
tribunals which
are obviously not to be treated as if they were institutions created
by a particular State. The Tribunal, like
all international
tribunals, does not belong to any State, not even the State in which
it has its permanent seat.
62
It
follows from the requirements listed in
Purser v Sales
63
that the South African common law on the enforcement of foreign
civil judgments was, thus far, developed to provide only for
the
execution of judgments made by domestic courts of a foreign State.
It does not apply to the enforcement of judgments of the
Tribunal
and there is no other legal provision for the enforcement of such
decisions in our country. This then gives rise to
the need to
develop the common law of South Africa in order to pave the way for
the enforcement of judgments or orders made by
the Tribunal. This
development of the common law extends to the enforcement of
judgments and orders of international courts or
tribunals, based on
international agreements that are binding on South Africa.
Development of the common law
The
development of the common law revolves around the resolution of the
question whether the concept of “foreign judgment
or order”
ought also to apply to a judgment of the Tribunal. What would help
us to solve this issue is the answer to the
question, “what
was the mischief sought to be addressed by developing the common law
to empower our domestic courts to
enforce or facilitate the
execution of orders made outside the borders of our country?”
It appears to me that that development
was driven by the need to
ensure that lawful judgments are not to be evaded with impunity by
any State or person in the global
village.
This
finds support from the two reasons advanced in
Richman v
Ben-Tovim
64
for the existence of the law on the enforcement of judgments of
foreign courts. First, enforcement is what is required by the
“exigencies of international trade and commerce” and
second, because “not to do so might allow certain persons
habitually to avoid the jurisdictional nets of the courts and
thereby escape legal accountability for their wrongful actions.”
65
Other
reasons are: (i) the principle of comity, which requires that a
State should generally defer to the interests of foreign
States,
with due regard to the interests of its own citizens and the
interests of foreigners under its jurisdiction, in order
to foster
international cooperation and (ii) the principle of reciprocity, the
import of which is that courts of a particular
country should
enforce judgments of foreign courts in the expectation that foreign
courts would reciprocate.
66
Another
important factor is that certain provisions of the Constitution
facilitate the alignment of our law with foreign
and international
law.
67
This promotes comity, reciprocity and the orderly conduct of
international trade, which is central to the enforcement of
decisions
of foreign courts.
Article 32 of the Tribunal Protocol is an offshoot of the Amended
Treaty that binds South Africa. It is foundational to the
development of the common law on enforcement in this matter and
provides that States “shall take forthwith all measures
necessary to ensure execution of decisions of the Tribunal.”
68
It also provides that the “law and rules of civil procedure
for the registration and enforcement of foreign judgments in
force
in the territory of the State in which the judgment is to be
enforced shall govern enforcement” of the Tribunal’s
decisions.
69
Since the Enforcement Act does not apply to this matter, the only
other applicable foreign judgment enforcement mechanism is
the
common law. We must, therefore, turn to the South African common
law. Based on article 32(1), the common law must be developed
in a
way that would empower South Africa’s domestic courts to
register and facilitate the enforcement of the Tribunal’s
decisions.
Article
32 imposes a duty upon Member States, including South Africa, to
take all execution-facilitating measures, such as the
development of
the common law principles on the enforcement of foreign judgments,
to “ensure execution of decisions of
the Tribunal.”
70
It also gives binding force to the decisions of the Tribunal on the
parties including the affected Member States, paves the way
and
provides for the enforceability of the Tribunal’s decisions
within the territories of Member States.
71
South Africa has essentially bound itself to do whatever is legally
permissible to deal with any attempt by any Member State
to
undermine and subvert the authority of the Tribunal and its
decisions as well as the obligations under the Amended Treaty.
Added
to this, are our own constitutional obligations to honour our
international agreements and give practical expression to
them,
72
particularly when the rights provided for in those agreements, such
as the Amended Treaty, similar to those provided for in our
Bill of
Rights, are sought to be vindicated. We are also enjoined by our
Constitution to develop the common law in line with
the spirit,
purport and objects of the Bill of Rights.
The
rule of law is a foundational value of our Constitution
73
and an integral part of the Amended Treaty.
74
And it is settled law that the rule of law embraces the fundamental
right of access to courts
75
in section 34 of the Constitution which provides:
“
Everyone
has the right to have any dispute that can be resolved by application
of law decided in a fair public hearing before a
court or, where
appropriate, another independent and impartial tribunal or forum.”
The
right to an effective remedy or execution of a court order is
recognised as a crucial component of the right of access to
courts.
76
This position was eloquently articulated by Jafta J in
Mjeni
v Minister of Health and Welfare, Eastern Cape
77
in these terms:
“
The
constitutional right of access to courts would remain an illusion
unless orders made by the courts are capable of being enforced
by
those in whose favour such orders were made. The process of
adjudication and resolution of disputes in courts of law is not
an
end in itself but only a means thereto; the end being the enforcement
of rights or obligations defined in the court order.”
78
An
observance of the right of access to courts would therefore be
hollow if the costs order were not to be enforced. To give practical
expression to the enjoyment of this right, even in relation to
judgments or orders of the Tribunal, articles 32(1) and (2) of
the
Tribunal Protocol and section 34 of the Constitution must be
interpreted generously to grant successful litigants access
to our
courts for the enforcement of orders, particularly those stemming
from human rights or rule of law violations provided
for in treaties
that bind South Africa. In this matter, this would be achieved by
construing the words “foreign courts”
to include the
Tribunal.
Section
8(1) of the Constitution provides that the Bill of Rights “binds
the legislature, the executive, the judiciary and
all organs of
state.” As was correctly observed by this Court
,
when
the Judiciary exercises its constitutional powers to develop the
common law, it must thereby seek to give expression to
the right of
access to courts.
79
No
law gives effect to the farmers’ right of access to courts for
the purpose of enforcing their costs order against Zimbabwe
in this
country. This Court is thus enjoined, not only by article 32 of the
Tribunal Protocol but also by section 8(3) of the
Constitution,
80
to either apply or develop the common law in order to give effect to
the farmers’ right to have the costs order enforced.
And since
the common law as it stands does not provide for the enforcement of
the Tribunal’s decision, the only option
available is
development.
Another
instrument of cardinal importance for the development of the common
law is section 39 of the Constitution, which provides:
“
(1)
When interpreting the Bill of Rights, a court, tribunal or forum—
(a) must promote the values that
underlie an open and democratic society based on human dignity,
equality and freedom;
(b) must consider international
law; and
(c) may consider foreign law.
(2) When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal or forum must
promote the spirit, purport and
objects of the Bill of Rights.
(3) The Bill of Rights does not
deny the existence of any other rights or freedoms that are
recognised or conferred by common law,
customary law or legislation,
to the extent that they are consistent with the
Bill
.”
When
courts are required to develop the common law or promote access to
courts, they must remember that their “obligation
to consider
international law when interpreting the Bill of Rights is of pivotal
importance.”
81
This is an obligation imposed on them by section 39(1)(b) of the
Constitution.
82
Measures to be taken by this Court in fulfilling its obligations in
terms of sections 34, 8(3) and 39 of the Constitution, in
relation
to this matter, are to be informed by international law, as set out
in the Amended Treaty, which obliges South Africa
to facilitate the
enforcement of decisions of the Tribunal.
Analogous
to the reasoning in
Glenister
, based on partial reliance on
the SADC Protocol on Corruption which flows from the Treaty,
83
South Africa’s obligation to develop the common law as a
measure necessary to execute the Tribunal’s decision—
“
is a
duty this country itself undertook when it acceded to these
international agreements. And it is an obligation that became binding
on the Republic, in the international sphere, when the National
Assembly and the NCOP by resolution adopted
them”.
84
Not
only must the relevant provisions of the Treaty be taken into
account as we develop the common law, but so must the spirit,
purport and objects of the Bill of Rights be promoted. A
construction of the Amended Treaty as well as the right of access to
courts, with due regard to the constitutional values of the rule of
law, human rights, accountability, responsiveness and openness,
85
enjoins our courts to be inclined to recognise the right of access
to our courts to register and enforce the Tribunal’s
decision.
This will, as indicated above, be achieved by extending the meaning
of “foreign court” to the Tribunal.
The need to do so is
even more pronounced since Zimbabwe, against which an order
sanctioned by the Treaty was made by the Tribunal,
does, in terms of
its Constitution, deny 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.
In
addition, section 233 of the Constitution enjoins a court
to prefer any reasonable interpretation of legislation
that is
consistent with international law to one that is not. This resonates
with our purpose for developing the common law,
comity and the
principle of reciprocity, which are central to the enforcement of
foreign judgments. The Amended Treaty, incorporating
the Tribunal
Protocol, places an international law obligation on South Africa to
ensure that its citizens have access to the
Tribunal and that its
decisions are enforced.
86
Section 34 of the Constitution must therefore be interpreted,
and the common law developed, so as to grant the right of
access to
our courts to facilitate the enforcement of the decisions of the
Tribunal in this country. This, as said, will be achieved
by
regarding the Tribunal as a foreign court, in terms of our common
law. It bears emphasis that South Africa has an obligation
to
facilitate the enforcement of human rights related orders made
against a State, including those stemming from the Amended
Treaty,
in accordance with international instruments which bind South Africa
in terms of section 231 of the Constitution.
The Tribunal
Protocol itself imposes a duty on Member States to take all measures
necessary to ensure the execution of the decisions
of the Tribunal.
87
The development of the common law thus amounts to compliance with
that injunction.
We
thus conclude, without straining the language of article 4(c)
of the Amended Treaty, article 32 of the Tribunal
Protocol, and sections 34, 8(3) and 39 of the Constitution which
create a platform for the development of the common law, that
the
right of access to South African courts is applicable to the farmers
as well. To this end, the concept of a “foreign
court”
will henceforth include the Tribunal.
Conclusion
When
the farmers’ rights to property, their human rights in general
and the right of access to courts in particular were
violated,
Zimbabwe was, in terms of article 6(6) of the Amended Treaty,
obliged to cooperate with the Tribunal in the adjudication
of the
dispute. After the Tribunal had delivered its judgment, Zimbabwe was
duty-bound to assist in the execution of that judgment
and so is
South Africa.
Now
that the common law has been developed to extend the concept of a
“foreign court” to the Tribunal, all common
law
requirements for the enforcement of foreign judgments have been met.
Our domestic courts have jurisdiction and were, subject
to the
development of the common law, entitled to register the costs order
of
the
Tribunal as the High Court did. This development applies only to
this and future matters.
88
Zimbabwe
has failed to show that the High Court lacked the jurisdiction to
register the costs order. Its application for rescission
must fail
and the appeal also falls to be dismissed with costs.
Order
The following order is made:
Leave to appeal is granted.
The
appeal is dismissed with costs, including the costs of two counsel
where applicable.
ZONDO J:
I
have had the opportunity of reading both judgments prepared by the
Chief Justice and Jafta J in this matter. Although I find
some of
the points raised by Jafta J in support of the conclusion that
leave to appeal should be refused attractive, on balance
I am in
agreement with the Chief Justice’s conclusion that leave
should be granted. I agree with the Chief Justice’s
reasons
for dismissing the appeal except paragraphs 44, 45 and 46. I think
paragraph 47 is a sufficient answer to Zimbabwe’s
contention
on ratification. It seems to me that the proposition dealt with in
paragraphs 44 to 46 is too widely stated.
JAFTA J:
I
have read the judgment prepared by the Chief Justice (main
judgment). I agree that the matter raises constitutional issues
but
disagree that it is in the interests of justice to grant leave. In
my respectful view the application must be dismissed
on the basis
that it is not in the interests of justice to grant leave in the
present circumstances.
It
is by now axiomatic that in order to succeed, an applicant for
leave must meet two requirements. First, it must show that
the case
raises a constitutional issue or an issue connected therewith.
Second, the applicant must show that the interests
of justice
favour the granting of leave. To establish that the matter involves
constitutional issues, as the applicant has
done in this case, is
not by itself sufficient. If the applicant fails, as demonstrated
below, to prove that it is in the interests
of justice to grant
leave, the application must be dismissed.
In
an affidavit filed in support of the application for leave to
appeal to this Court, Zimbabwe does not refer at all to the
interests of justice. The deponent to this affidavit is Zimbabwe’s
Attorney-General. In my view this is a serious shortcoming.
The
question is whether there is anything in the record showing that it
is in the interests of justice for leave to be granted.
As appears
below I think there is nothing. In my view Zimbabwe has not shown
prospects of success against the order granted
by the Supreme Court
of Appeal. As stated below, this is an important factor, more so if
the appeal is against a judgment of
the Supreme Court of Appeal. In
its written submissions, Zimbabwe does not canvass the question of
the interests of justice
at all.
Zimbabwe’s
case
For
a better understanding of the matter it is necessary to recount
briefly what this case is about. The first to third respondents
(the respondents) are farmers whose farms were expropriated in
Zimbabwe without compensation. This happened in circumstances
where
disputes in relation to expropriation of land in that country were
placed beyond the reach of its Judiciary. Aggrieved
parties
literally had no forum to take their cases to in Zimbabwe.
As a
result the respondents took their case to the Tribunal for
adjudication. Having participated in the proceedings before
the
Tribunal, Zimbabwe later refused to carry out its order. Belatedly,
and as illustrated by the judgment of the Supreme Court
of Appeal,
Zimbabwe wrongly questioned the Tribunal’s jurisdiction only
when it had rendered judgment against it. Thus
the respondents were
left with no option but to go back to the Tribunal for further
relief. The matter was referred to the
Summit and the Tribunal
imposed costs orders against Zimbabwe. These costs orders too were
not paid.
Next
the respondents approached the courts in this country in an attempt
to have the costs orders debt paid. They approached
the High Court
for recognition and registration of the Tribunal’s order as a
prelude to execution of those orders in
this country. The
application papers were served on Zimbabwe which filed a notice of
intention to oppose. But later the notice
was deliberately
withdrawn and the matter proceeded unopposed.
Following
the registration of the Tribunal’s orders, writs of execution
were issued by relevant authorities in respect
of Zimbabwe’s
immovable property in this country. This occurred after the sheriff
had found no movable property to satisfy
the judgment debt. It was
the execution of these writs which interrupted Zimbabwe’s
deliberate inaction and prompted
an urgent application in the High
Court for a stay of execution and rescission of the order granting
registration of the Tribunal’s
costs orders.
In
essence, therefore, this matter is about rescission of the orders
granted by the High Court with Zimbabwe’s deliberate
indifference. The question that arose in the High Court was whether
Zimbabwe had made out a case for rescission. The High Court
held
that it had not and dismissed the application. Zimbabwe’s
appeal suffered the same fate in the Supreme Court of
Appeal. That
Court considered the requirements for rescission under the common
law and held that Zimbabwe had failed to satisfy
them.
Rescission
At
common law the requirements for rescission of a default judgment
are twofold. First, the applicant must furnish a reasonable
and
satisfactory explanation for its default. Second, it must show that
on the merits it has a bona fide defence which prima
facie carries
some prospect of success.
89
Proof of these requirements is taken as showing
that there is sufficient cause for an order to be rescinded. A
failure to meet
one of them may result in refusal of the request to
rescind.
In
Chetty
Miller JA formulated the test in these terms:
“
It is
not sufficient if only one of these two requirements is met; for
obvious reasons a party showing no prospect of success
on the merits
will fail in an application for rescission of a default judgment
against him, no matter how reasonable and convincing
the explanation
of his default. And ordered judicial process would be negated if, on
the other hand, a party who could offer
no explanation of his
default other than his disdain of the Rules was nevertheless
permitted to have a judgment against him rescinded
on the ground
that he had reasonable prospects of success on the merits. The
reason for my saying that the appellant’s
application for
rescission fails on its own demerits is that I am unable to find in
his lengthy founding affidavit, or elsewhere
in the papers, any
reasonable or satisfactory explanation of his default and total
failure to offer any opposition whatever to
the confirmation on
16 September 1980 of the rule
nisi
issued
on 22 April 1980.”
90
Applying
the test to the present facts reveals that Zimbabwe has no
prospects of success on appeal. First, it has given an
unsatisfactory explanation for its default which was deliberate. In
the affidavit filed in support of the claim for rescission
in this
Court, Zimbabwe says that it withdrew its opposition because as a
sovereign State it did not want to subject itself
to courts of
another State. But surprisingly when the writs were executed
Zimbabwe was swift and willing to subject itself
to those very
courts for protection. The lack of respect displayed by Zimbabwe to
the High Court before the impugned order
was granted is unfortunate
and it is a weighty factor against the granting of leave.
The
other ground advanced by Zimbabwe for rescission was that at the
time the respondents sought registration, the matter was
pending
before the Summit. Zimbabwe contended that this fact was not
disclosed by the respondents to the High Court and that
if the High
Court was aware of the fact it would not have granted registration.
There is no merit in this contention. Referral
of Zimbabwe’s
failure to carry out the Tribunal’s main order relating to
compensation to the Summit did not preclude
registration of the
costs orders in the High Court. If the High Court were to refuse
registration on that basis it would not
have exercised its power
correctly. The costs orders were not subject to reconsideration by
the Summit.
In
an appropriate case an unsatisfactory explanation furnished by an
applicant for rescission may be compensated for by good
prospects
of success on the merits.
91
As I have just illustrated, this is not such a
case. Here the unsatisfactory explanation was accompanied by a
disclosure of
defences which prima facie had no prospects of
success. Accordingly the High Court dismissed the application for
rescission.
In
the Supreme Court of Appeal, a new defence which was not pleaded in
the High Court was raised. It was contended that it was
not
competent for the High Court to recognise the Tribunal’s
orders because that orders were not enforceable in this
country.
92
It is apparent from the judgment of the Supreme
Court of Appeal that Zimbabwe did not specify why it was not
competent to recognise
and enforce the Tribunal’s orders.
Although this was raised for the first time on appeal, the Supreme
Court of Appeal
considered the argument and rejected it. The Court
held that our common law, subject to certain conditions, permitted
enforcement
of foreign judgments.
Although
this rule applied to domestic foreign judgments, the Supreme Court
of Appeal extended its application to orders of
international
tribunals. On this aspect the Court said:
“
While
the authorities referred to in that passage from the judgment are
directed at the enforcement of a judgment of the domestic
courts of
a foreign country I see no reason to disagree with Patel J that they
are applicable as well to an order of an international
tribunal
whose legitimacy has been accepted. There is also no question that
the order now sought to be enforced satisfies all
the requirements
of paras (ii)-(vi)
tabulated
in the extract from the judgment in
Jones
v Krok
[1994] ZASCA 177
;
[1995
(1) SA 677
(A)]
that
is cited in the passage above. What remains is only whether the
Tribunal had jurisdiction to entertain the case, which was
hotly
contested by Zimbabwe, as foreshadowed by the letter written by its
Minister of Justice that I referred to earlier.”
93
(Footnotes omitted.)
As
is apparent from the statement quoted above, the Supreme Court of
Appeal found that, barring one requirement, the Tribunal’s
costs orders met requirements for enforcement of foreign judgments
at common law. The Court held further that the only requirement
that needed to be considered was whether the Tribunal had
jurisdiction to entertain the case. Following an examination of
various contentions, including the fact that Zimbabwe had submitted
to and participated in the Tribunal’s proceedings,
the
Supreme Court of Appeal held that the Tribunal had jurisdiction to
adjudicate the case. This meant that all requirements
for the
enforcement of a foreign judgment under the common law were
satisfied. Consequently the appeal was dismissed.
There
can be little doubt that by extending the application of the
common-law rule at issue here to orders of international
tribunals,
the Supreme Court of Appeal was developing the common law. Indeed
in
Carmichele
,
94
this Court observed:
“
There
are notionally different ways to develop the common law under
section 39(2) of the Constitution, all of which might
be
consistent with its provisions.”
95
This
statement is in line with what actually happened previously when
the Appellate Division (now the Supreme Court of Appeal)
developed
the common law. For example, in
Indac
Electronics (Pty) Ltd v Volkskas Bank Ltd
,
96
that Court developed the common law to recognise
delictual liability for pure economic loss caused negligently by a
collecting
banker to the true owner of a cheque. Before then the
common-law rule was that a collecting banker was not liable. In
developing
the common law, Vivier JA simply stated:
“
[
Yorkshire
Insurance Co Ltd v Standard Bank of SA Ltd
1928 WLD 223]
can, in my view, no longer be regarded as authority
for the proposition that no delictual action lies against a
collecting banker
who has negligently caused loss to the true owner
of a cheque. There can now be no reason in principle why a
collecting banker
should not be held liable under the extended
lex
Aquilia
for negligence to the true owner of a cheque, provided all the
elements or requirements of Aquilian liability have been met.”
97
Having
stated the new common law rule in the terms outlined above, the
Appellate Division proceeded to apply it and examined
whether the
requirements for Aquilian liability had been met and concluded that
only the element of wrongfulness was at issue.
Similarly in this
case the Supreme Court of Appeal held that no reasons existed for
not extending the relevant rule to orders
of international
tribunals whose legitimacy has been accepted. In addition, the
Court found that, of the requirements for enforcing
foreign
judgments, only jurisdiction was in dispute and proceeded to
consider if that requirement had been established.
Zimbabwe’s contentions on rescission
In
argument before us – both written and oral – Zimbabwe
failed to address the question whether the requirements
for
rescission were met. In written argument, Zimbabwe submitted that
the impugned orders were erroneously granted by the High
Court. For
this contention reliance was placed on
The
Akademik Fyodorov
:
Government of the Russian Federation and Another v Marine
Expeditions Inc.
98
But that case dealt with the immunity enjoyed by
a foreign State under the Foreign States Immunities Act
99
(Immunities Act). Zimbabwe argued that this Act
immunised it from jurisdiction of courts in this country and as a
result it
was not competent for the High Court to register an order
against it. Since the order was erroneously granted against
Zimbabwe,
continued the argument, it was not necessary for Zimbabwe
to establish sufficient cause. In this regard reference was made to
Promedia Drukkers & Uitgewers
(Edms) Bpk v Kaimowitz and Others.
100
It
is true that where rescission of a judgment is sought on the basis
that it was erroneously granted the applicant need not
show
sufficient cause.
101
All that is required for an applicant to succeed
under this ground is for it to establish the error which vitiated
the impugned
order or the proceedings in which the order was
granted.
On
this aspect, the case pleaded by Zimbabwe was the following.
Section 13(1) of the Immunities Act prescribes that process
on a
foreign State should be served through the Department of Foreign
Affairs which must deliver the process to the Ministry
of Foreign
Affairs of the foreign State. It is common cause that this was not
followed in this case. But section 13(3) of the
Immunities Act
provides that a foreign State that appears in the proceedings
cannot later object that it was not served in
compliance with
section 13(1). As stated earlier, Zimbabwe filed a notice to oppose
which was later withdrawn. By so doing
Zimbabwe waived its
entitlement to insist on service in terms of section 13(1).
Therefore the issue of service did not constitute
the error which
vitiated the order granted.
Zimbabwe
also contended, in its affidavit filed in support of rescission,
that in breach of section 13(5) of the Immunities
Act, the order in
terms of which the Tribunal’s ruling was registered was not
served on it through the Department of
Foreign Affairs. In the
context of rescission, reliance on section 13(5) is misplaced. The
section regulates the execution
of a judgment obtained by default
against a foreign State in circumstances where the foreign State is
allowed two months within
which to seek rescission. The complaint
here is not that Zimbabwe was given insufficient time within which
to apply for rescission.
Instead, Zimbabwe contended that the
failure to serve the order in terms of section 13(5) was fatal to
the validity of the
order.
Since
service of an order is effected after the conclusion of court
proceedings, common sense dictates that an irregular service
cannot
affect the validity of the order served. Therefore Zimbabwe has
failed to establish an irregularity which invalidated
the
registration of the impugned order.
In
a nutshell Zimbabwe has not established that if leave to appeal is
granted there are prospects of success on the merits of
the appeal.
Although the lack of prospects is not a decisive factor, it is
certainly a weighty factor in determining whether
the granting of
leave will be in the interests of justice. In
S
v Boesak
102
this Court said:
“
A
finding that a matter is a constitutional issue is not decisive.
Leave may be refused if it is not in the interests of justice
that
the Court should hear the appeal. The decision to grant or refuse
leave is a matter for the discretion of the Court, and
in deciding
whether or not to grant leave, the interests of justice remain
fundamental. In considering the interests of justice,
prospects of
success, although not the only factor, are obviously an important
aspect of the enquiry. An applicant who seeks
leave to appeal must
ordinarily show that there are reasonable prospects that this Court
will reverse or materially alter the
decision of the SCA.”
103
In
some cases the absence of prospects of success may be decisive. For
instance, this will be the position where no pronouncement
is to be
made by this Court on an important constitutional principle which
will guide the litigants and other courts in future
cases. But
where leave is sought against a fully reasoned judgment of the
Supreme Court of Appeal – as is the position
here –
prospects of success become paramount. In
Bruce
and Another v Fleecytex Johannesburg CC and Others
104
this Court stated:
“
In
dealing with applications for leave to appeal against a decision of
the Supreme Court of Appeal this Court has held that the
prospects
of success are of fundamental importance.”
105
(Footnote
omitted.)
As
mentioned earlier, here the Supreme Court of Appeal has already
developed the common law by extending the application of
the rule
under which foreign judgements are enforced to orders of
international tribunals. The Supreme Court of Appeal went
further
to apply that rule. In this regard that Court examined whether the
Tribunal’s orders satisfied the requirements
for enforcing
foreign judgments. Having considered this it held, correctly in my
view, that all requirements were met. In these
circumstances no
pronouncement on a constitutional principle is required from this
Court. This coupled with the fact that there
are no prospects of
success places an insurmountable obstacle against the granting of
leave. Therefore, no purpose will be
served by granting Zimbabwe
leave to appeal.
Moreover,
the jurisprudence of this Court illustrates that the Supreme Court
of Appeal has the expertise and that it and the
High Courts are
best placed when it come to the development of the common law.
106
This is demonstrated by the following
principles. First, the development of the common law must be
pleaded or requested at the
earliest possible stage.
107
Ordinarily where the development has not
occurred in the Supreme Court of Appeal and the High Court, this
Court remits the case
to those courts.
108
Except in special circumstances, this Court
refuses to develop the common law as a court of first and last
instance.
109
The views of the other courts on the development
of the common law are highly valued by this Court.
110
This Court defers to the Supreme Court of Appeal
and the High Court to determine whether the common law needs to be
developed
to meet the objects of section 39(2) of the Constitution
and if so, the form that development should take.
111
Consistent
with these principles the Supreme Court of Appeal decided that the
common-law rule in terms of which foreign judgments
were enforced
required development to include enforcement of orders issued by
international tribunals. Furthermore, that Court
has determined the
manner in which that development was to be undertaken. The process
cannot, in my view, be faulted and the
main judgment does not
assail it. Consequently it is not in the interests of justice for
this Court to grant leave merely to
endorse what the Supreme Court
of Appeal has done.
[106]
For these reasons I would dismiss the application for leave with
costs.
For
the Applicant: Advocate P Mtshaulana SC and Advocate M Lekoane
instructed by Mathopo Moshimane Mulangaphuma Inc.
For
the First and Second Respondents: Advocate J J Gauntlett SC,
Advocate F B Pelser and Advocate N Pakade instructed by Hurter
Spies
Inc.
1
Treaty
of the Southern African Development Community (1993) 32
ILM
116, Preamble and article 4.
2
Id
article 9(1)(f) and article 18 of the
Protocol on
Tribunal in the Southern African Development Community (Tribunal
Protocol) adopted on 14 August 2001,
http://www.sadc.int/documents-publications/show/814,
accessed on 26
March 2013
. In August 2012, the Summit (the highest policy
making body of SADC) resolved that a new Protocol on the Tribunal
should be negotiated
and that its mandate should be confined to
disputes between Member States.
3
Mike
Campbell (Pvt) Ltd. and Others v The Republic of Zimbabwe
[2008]
SADCT 2 (28 November 2008) (Tribunal ruling).
4
This
was done pursuant to article 32(4) and (5) of the Tribunal Protocol.
5
See
above n 1.
6
Chapter
17 of the Treaty deals with, inter alia, signature, ratification and
the entry into force of the Treaty. Article 39
provides that
the Treaty shall be signed by the “High Contracting Parties”
which are the States represented in concluding
the Treaty for the
purpose of establishing SADC.
7
SADC
Tribunal,
Status List of SADC Legal Instruments
(2010),
http://sadc-tribunal.org/pages/status_list.htm, accessed
26 March 2013.
8
In
an affidavit filed by Zimbabwe’s Attorney-General, Mr Johannes
Tomana, in proceedings in the High Court of Zimbabwe he
stated:
“
It is correct that Zimbabwe
is a member of SADC, and assumed the obligations referred to in the
Treaty establishing SADC when
His Excellency, the President, signed
that Treaty at Windhoek, Namibia, on 17
th
August, 1992. Zimbabwe’s legislature ratified the Treaty
on 17
th
November, 1992.”
9
See
above n 7.
10
The
Senate was later replaced by the National Council of Provinces
(NCOP). See article 3(1)(b) of Schedule 6 to the Constitution.
11
Article
6(1) of the Treaty.
12
Id
article 6(5).
13
Id
article 6(6).
14
Id
article 9(1)(f).
15
Id
article 16(1).
16
Protocol
on Tribunal in the Southern African Development Community (Tribunal
Protocol) adopted on 14 August 2001,
http://www.sadc.int/documents-publications/show/814,
accessed on 26
March 2013
.
17
Article
38 of the Tribunal Protocol provides that it shall come into force
after ratification by two-thirds of the Member States.
18
Article
36(1) of the Treaty (included in Chapter 14 of the Treaty which is
titled “Amendment of the Treaty”).
19
Adopted
on
14 August 2001,
http://www.sadc.int/documents-publications/show/1181, accessed on
18 June 2013.
20
See
above n 17. Article 38 of the Tribunal Protocol was subsequently
repealed by the Agreement Amending the Protocol on Tribunal
which
entered into force on 3 October 2002.
21
Article
32 of the Amending Agreement.
22
Section
16B of the Constitution of the Republic of Zimbabwe.
23
In
terms of section 16B of the Constitution of the Republic of
Zimbabwe, an “a
cquiring
authority” is
defined
as, “the Minister responsible for lands or any other Minister
whom the President may appoint as an acquiring authority”
for
the purposes of acquiring land for “resettlement and other
purposes”.
24
A
referral to the Summit is provided for in article 32(5) of the
Tribunal Protocol which provides that “[i]f the Tribunal
establishes the existence of [any failure by a State to comply with
a decision of the Tribunal], it shall report its finding
to the
Summit for the latter to take appropriate action.”
25
Fick
and Others v Government of the Republic of Zimbabwe
, Case No
77880/2009, North Gauteng High Court, Pretoria, 13 January 2010,
unreported.
26
Fick
and Others v Government of the Republic of Zimbabwe
, Case No
77881/2009, North Gauteng High Court, Pretoria, 25 February 2010,
unreported.
27
Government
of the Republic of Zimbabwe v Fick and Others
[2011] ZAGPPHC 76.
28
87
of 1981.
29
Government
of the Republic of Zimbabwe v Fick and Others
[2012] ZASCA 122
(Supreme Court of Appeal judgment) at para 29.
30
Id
at para 45.
31
Id
at para 20.
32
Id
at para 40.
33
Article 16(2)
of the Treaty, as amended by the insertion of the underlined
section, provides:
“
The composition, powers,
functions, procedures and other related matters governing the
Tribunal shall be prescribed in a Protocol,
which
shall, notwithstanding the provisions of Article 22 of this
Treaty, form an integral part of this Treaty,
adopted by the Summit.”
34
Section
34 of the Constitution.
35
Id
section 1(c). See
President of the Republic of South Africa and
Another v Modderklip Boerdery (Pty) Ltd (Agri SA and Others,
Amici
Curiae
)
[2005] ZACC 5
;
2005 (5) SA 3
(CC);
2005 (8) BCLR 786
(CC) (
Modderklip
) at para 39.
36
32
of 1988.
37
Supreme
Court of Appeal judgment above n 29 at paras 18-25.
38
1996
(4) SA 411
(C).
39
Supreme
Court of Appeal judgment above n 29 at para 17.
40
[2011]
ZACC 6
;
2011 (3) SA 347
(CC);
2011 (7) BCLR 651
(CC).
41
Id
at paras 191-3.
42
South
Africa acceded to the Treaty on 29 August 1994 in Gaborone,
Botswana. This accession was approved by the Senate and National
Assembly on 13 and 14 September 1995 respectively.
43
Article
32 is reproduced in full in below.
44
According
to article 2 of the Vienna Convention on the Law of Treaties, 1969
(1969) 8
ILM
679, “ratification” and “accession”
are defined as international acts whereby a State establishes, on
the international plane, its consent to be bound by a treaty.
45
The
long title of the Enforcement Act states that it was passed to
provide for the enforcement, in Magistrates’ Courts in
the
Republic, of civil judgments given in designated countries. The Act
defines “court”, in relevant part, as:
“
[I]n relation to a court in
the Republic . . . the magistrate’s court of the district
where—
(a) the person against whom a judgment in question was
given—
(i) resides, carries on business or is employed; or
(ii) owns any movable or immovable property;
(b) any juristic person against which the judgment was
given has its registered office, or its principal place of business;
(c)
any partnership against which the judgment was given has its
business premises or any member thereof resides”.
46
Purser
v Sales; Purser and Another v Sales and Another
[2000] ZASCA 46
;
2001 (3) SA 445
(SCA) (
Purser v Sales
) at paras 11-2. See
also
Jones v Krok
[1994] ZASCA 177
;
1995 (1) SA 677
(A) at 685A-E.
47
99
of 1978.
48
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) at paras 28-9.
49
S
ection
1 of the Constitution.
50
Section
111B of the Constitution of the Republic of Zimbabwe provides:
“
(1) Except as otherwise
provided by this Constitution or by or under an Act of Parliament,
any convention, treaty or agreement
acceded to, concluded or
executed by or under the authority of the President with one or more
foreign states or governments or
international organisations—
(
a
)
shall be subject to approval by Parliament; and
(
b
)
shall not form part of the law of Zimbabwe unless it has been
incorporated into the law by or under an Act of Parliament.
(2) Except as otherwise provided by or under an Act of
Parliament, any agreement—
(
a
)
which has been concluded or executed by or under the authority of
the President with one or more foreign organisations, corporations
or entities, other than a foreign State or government or an
international organisation; and
(
b
)
which imposes fiscal obligations upon Zimbabwe;
shall be subject to approval by Parliament.
(3) Except as otherwise provided by this Constitution
or by or under an Act of Parliament, the provisions of subsection
(1)(
a
) shall not
apply to—
(
a
)
any convention, treaty or agreement, or any class thereof, which
Parliament has by resolution declared shall not require approval
in
terms of subsection (1)(
a
);
or
(
b
)
any convention, treaty or agreement the subject-matter of which
falls within the scope of the prerogative powers of the President
referred to in section 31H(3) in the sphere of international
relations;
unless the application or operation of the convention,
treaty or agreement requires—
(i) the withdrawal or appropriation of moneys from the
Consolidated Revenue Fund; or
(ii) any modification of the law of Zimbabwe.”
51
See
the Tribunal ruling above n 3 at 23-4 where the Tribunal summarised
Zimbabwe’s submissions as follows:
“
[Zimbabwe] . . . submitted
that the Treaty only sets out the principles and objectives of SADC.
It does not set out the standards
against which actions of Member
States can be assessed. . . . [T]he Tribunal cannot borrow these
standards from other Treaties
as this would amount to legislating on
behalf of SADC Member States. . . . [T]here are numerous Protocols
under the Treaty but
none of them is on human rights or agrarian
reform, pointing out that there should first be a Protocol on human
rights and agrarian
reform in order to give effect to the principles
set out in the Treaty. . . . [T]he Tribunal is required to interpret
what has
already been set out by the Member States and that,
therefore, in the absence of such standards, against which actions
of Member
States can be measured, in the words of its learned Agent,
‘
the Tribunal
appears to have no jurisdiction to rule on the validity or otherwise
of the land reform programme carried out in
Zimbabwe’.”
(Emphasis in
original.)
52
Article
4 provides in relevant part:
“
SADC and its Member States
shall act in accordance with the following principles:
c) human rights, democracy and the rule of law”.
53
Article
14(a) of the Tribunal Protocol.
54
Id
article 15(1).
55
Id
article 15(2).
56
Id
article 32(2).
57
Id
article 32.
58
Purser
v Sales
above n 46 at paras 11-2.
59
I
say “broadly”, because we must still address the
question whether a “foreign court” also means an
international court or tribunal or whether the common law must first
be developed in order to extend the meaning of this concept
to
include the Tribunal.
60
Reiss
Engineering Co Ltd v Insamcor (Pty) Ltd
1983
(1) SA 1033
(T) at 1037A-C.
61
See
Purser v Sales
above n 46 at para 12.
62
Such
as the European Court of Human Rights in Strasbourg, France.
63
Quoted
in Error: Reference source not found above.
64
[2006]
ZASCA 121
;
2007 (2) SA 283
(SCA).
65
Id
at para 9.
66
See,
in a different context,
Geuking v President of the Republic of
South Africa and Others
[2002] ZACC 29
;
2003 (3) SA 34
(CC);
2004 (9) BCLR 895
(CC) at para 2.
67
Sections
39 and 233 of the Constitution.
68
Article
32(2) of the Tribunal Protocol.
69
Id
article 32(1).
70
Id
article 32(2).
71
Id
article 32(3).
72
See
section 231 of the Constitution, quoted in above, and
Glenister
above n 40 at paras 191-3, quoted in Error: Reference source not
found above.
73
Section
1(c) of the Constitution. See also
Pharmaceutical Manufacturers
Association of SA and Another: In re Ex parte President of the
Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA
674
(CC);
2000 (3) BCLR 241
(CC) at para 17.
74
Article
4(c) of the Amended Treaty.
75
Modderklip
above n 35 at para 39.
76
Chief
Lesapo v North West Agricultural Bank and Another
[1999]
ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at paras 11
and 13.
77
2000
(4) SA 446
(Tk).
78
Id
at 453B-C.
79
See
President of the Republic of South Africa and Others v South
African Rugby Football Union and Others
[1999] ZACC 9
;
1999 (4)
SA 147
(CC);
1999 (7) BCLR 725
(CC) at para 28. See also
Glenister
above n 40 at para 190.
80
Section
8(3) provides as follows:
“
When applying a provision of
the Bill of Rights to a natural or juristic person in terms of
subsection (2), a court—
(a) in order to give effect to a right in the Bill,
must apply, or if necessary develop, the common law to the extent
that legislation
does not give effect to that right”.
81
Glenister
above n 40 at para 192
82
Id.
83
Id
at para 185.
84
Id
at para 193.
85
Section
1 of the Constitution.
86
Articles
15(1) and 32(2) of the Tribunal Protocol read with article 6 of the
Amended Treaty.
87
Article
32 of the Tribunal Protocol, quoted in full in above.
88
See
K v Minister of Safety and Security
[2005] ZACC 8
;
2005 (6)
SA 419
(CC);
2005 (9) BCLR 835
(CC) at paras 45 and 50.
89
Chetty
v Law Society, Transvaal
1985 (2) SA 756
(A);
De Wet and
Others v Western Bank Ltd
1979 (2) SA 1031
(A); and
Harris v
ABSA Bank Ltd t/a Volkskas
2006 (4) SA 527
(T).
90
Chetty
above n 89 at 765D-F.
91
Colyn
v Tiger Foods Industries Ltd
t/a Meadow Feed Mills (Cape)
[2003] ZASCA 36
;
2003 (6) SA 1
(SCA) at para 12.
92
Supreme
Court of Appeal judgment above n 29 at paras 26 and 28.
93
Id
at para 29.
94
Carmichele
v Minister of Safety and Security
(Centre for Applied
Legal Studies Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC).
95
Id
at para 56.
96
[1991] ZASCA 190
;
1992
(1) SA 783
(A).
97
Id
at 796I-797B. See also
Gouda Boerdery Bk v Transnet
2005 (5)
SA 490
(SCA) at para 12.
98
1996
(4) SA 422
(CPD).
99
87
of 1981.
100
1996
(4) SA 411
(CPD).
101
National
Pride Trading 452 (Pty) Ltd v Media 24 Ltd
2010 (6) SA 587
(ECP)
at para 56 and
Mutebwa v Mutebwa and Another
2001 (2) SA 193
(Tk).
102
[2000]
ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC).
103
Id
at para 12.
104
[1998]
ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC).
105
Id
at para 6.
106
Amod
v Multilateral Motor Vehicle Accidents Fund
[1998] ZACC 11
;
1998
(4) SA 753
(CC);
1998 (10) BCLR 1207
(CC) at para 33.
107
Everfresh
Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd
[2011]
ZACC 30
;
2012 (1) SA 256
(CC);
2012 (3) BCLR 219
(CC) at para 52.
108
Amod
above n 106 and
Carmichele
above n 94.
109
Lane
and Fey NNO v Dabelstein and Others
[2001] ZACC 14
;
2001 (2) SA
1187
(CC);
2001 (4) BCLR 312
(CC).
110
Id
at para 5 and
Amod
above
n 106 at para 33. See also
Fourie
and Another v Minister of Home Affairs and Another
[2003]
ZACC 11
;
2003 (5) SA 301
(CC);
2003 (10) BCLR 1092
(CC) at para 12.
111
Carmichele
above n 94 at para 55.