TIISO HOLDINGS (PTY) LTD v ZISCO 2010 (2) ZLR 100 (H)

Flynote

Jurisdiction — principles — effectiveness — when foreign court has jurisdiction — submission to jurisdiction — sufficiency of

Practice and procedure — judgment — foreign judgment — recognition and enforcement of — principles — jurisdiction of foreign court — defendant submitting to jurisdiction — sufficiency of — finality of foreign judgment D — need for plaintiff to show that foreign judgment final — provisional judgment not enforceable

Prescription — running of — foreign judgment — prescription of claim based on such judgment — issue of prescription determined by lex causae — need to show that claim was prescribed in terms of foreign law

Headnote

The applicant issued summons for payment of the sum of some 6 million euros together with interest and costs of suit. The summons was issued more than three years after a default judgment had been entered against the defendant in Frankfurt, Germany, the rights in which judgment had been ceded to the applicant. The defendant raised a plea in abatement regarding the enforceability of the foreign judgment. The main issues for determination were (a) whether the foreign judgment was contrary to natural justice because of the failure to serve court process properly or at all; (b) whether part of the amount claimed by the plaintiff before the Frankfurt court had prescribed at the time that the claim was instituted; (c) whether the Frankfurt award was unenforceable ab initio in the absence of any executable assets belonging to the defendant in Germany; and (d) whether or not the Frankfurt judgment was final and conclusive for the purposes of its recognition and enforcement in Zimbabwe.

Held, that the general requirements for the recognition and enforcement of foreign judgments are:
(i) the foreign court in question had the requisite international jurisdiction or competence according to our law; (ii) the judgment concerned was final and had the effect of res judicata according to the law of the forum in which it was pronounced; (iii) the judgment must not have been obtained by fraudulent means; (iv) it must not entail the enforcement of a penal or revenue law of the foreign State; (v) it must not be contrary to public policy in Zimbabwe; and (vi) the foreign court must have observed the minimum procedural standards of justice in arriving at the judgment.

Held, further, that although a mere procedural irregularity will not debar recognition, there must have been reasonable notice of the proceedings to the persons affected and adherence to the audi alteram partem principle. The evidence was that the respondent was issued a summons and failed to respond to it. Held, further, that prescription is a substantive matter and, as such, falls to be determined by the lex causae and not the lex fori. The law of Germany was the lex causae and it was that law that determined the question of prescription. In this regard, the defendant did not adduce any evidence as to the German law of prescription. In any event, it would not be competent for a court in Zimbabwe to review the correctness or otherwise of the Frankfurt court's determination, if any, as to whether or not the claim had prescribed under the law of Germany. In proceedings for the recognition of a foreign judgment, it would be quite improper to pronounce upon the merits of any issue of fact or law tried by the foreign court and to review or set aside its findings. The effect of the Frankfurt judgment was a novatio necessaria of the original debt sued upon. While such novatio did not necessarily entail the creation of a new obligation, the clear effect of the judgment was to provide a new right of action enforceable as such. Under s 15(a)(ii) of the Prescription Act [Chapter 8:11], a judgment debt only prescribes after 30 years.

Held, further, that the principle of effectiveness that underlies the law of jurisdiction, in its absolute sense, is that the court will only have jurisdiction if it controls the person or property of the defendant, as the mere consent or submission of the defendant to the jurisdiction of the court affords no absolute guarantee that the court's judgment will be effective. Nowadays, however, submission is widely recognised in legal systems across the world as a ground of international competence justifying the enforcement of the judgment of a foreign court to which the defendant has submitted. A defendant's express submission to the jurisdiction of a foreign court suffices, ipso facto, and without any further jurisdictional ground, to endow that court with the requisite international competence, enabling and allowing the recognition and enforcement of its judgments under the common law, regardless of whether the defendant may or may not have had any executable assets in the foreign country.

Held, further, that a foreign judgment will not be enforced unless it is a final judgment and has the effect of res judicata according to the law of the forum that pronounced the judgment. The fact that it is subject to appeal does not affect its finality for the purposes of recognition, but if an appeal is actually pending our courts would probably exercise their discretion not to recognise the judgment. Finality must be alleged and proved by the party seeking to enforce the judgment. A provisional judgment of an internationally competent foreign court will not be enforced or recognised. The finality and conclusiveness of the judgment should appear ex facie the record. There should, if necessary, be a due and proper translation. Here, the translation of the document from the court in Frankfurt stated that the judgment was provisional or preliminary and only provisionally enforceable. Without anything explaining the relevant law of Germany, by way of written law or judicial decisions, as would conform with the requirements of s 25 of the Civil Evidence Act [Chapter 8:01], it must be held that the judgment in casu was not final and conclusive for the purposes of its recognition and enforcement in this jurisdiction.