THE HIGH COURT OF SWAZILAND
the matter between:
PROPRIETARY LIMITED Plaintiff
CHARLES HUDSON Respondent
: DUNN J.
FINE FOR PLAINTIFF
RIBA FOR DEFENDANT
17 JUNE 1994
this application for summary judgment, the plaintiff seeks payment of
the sum of E11,944.35 with interest thereon at the rate of 18.5% per
annum from 1st May 1990 to date of payment and costs. The claim is
based on a judgment which was entered against the defendant and one
Ivan Hugo Dodd in the Durban and Coast Local Division of the Supreme
Court of South Africa on the 26th September 1991 under case number
05646/91. A copy, certified to be a true copy, of the original order
of the South African Court is annexed to the plaintiff's summons. The
order reads-Having heard Counsel for the plaintiff and having read
the summons and the other documents filed of record, and the
defendant being in default, the Court grants default judgment in
favour of the plaintiff against the defendants jointly and severally,
the one paying the other to be absolved for:-
in the sum of R11 944,35.
thereon at the rate of 18.5% per annum from 1 May 1990 to date of
order was signed by the Acting Assistant Registrar.
application is resisted by the defendant on the grounds-
the judgment relied upon by the plaintiff was obtained in the
Republic of South Africa and as such is not automatically
enforceable in Swaziland.
his dealing with the plaintiff were in his capacity as a director of
Intuthuko Homes (PTY) Ltd against which company the plaintiff
instituted action for the payment of R23 944.35.
defendant states that a settlement was reached between the company
and the plaintiff thus releasing the defendant from a deed of
suretyship, signed by the defendant, in respect of the Company's
indebtedness to the plaintiff and on which the plaintiff's claim in
the South African Court was based.
recipiocal Enforcement of Judgments Act No. 4/1992 does not extend to
judgments of the Courts of the Republic of South Africa. The
plaintiff cannot, in the circumstances, avail itself of the simple
procedure provided by that Act and the Regulations thereunder.
Court does, however, have common law jurisdiction to recognise and
enforce foreign judgements. Under the Roman Dutch common law there
are certain conditions which need to be fulfilled before a foreign
judgment will be recognized
must be shown that the foreign Court had international jurisdiction
or competence to decide the case.
must be shown that the judgment rendered was final and conclusive.
recognition and enforcement of the judgment must not be against
public policy including observance of the rules of natural justice.
Forsyth, PRIVATE INTERNATIONAL LAW 2nd Edition p.336 and the
authorities there cited. Joubert,THE LAW OF SOUTH AFRICA VOL.2.
p.363. The first requirement in so far as it relates to a judgment
sounding in money against a defendant who is a natural person entails
consideration of factors such as the residence or physical presence
of the defendant within the jurisdiction of the foreign Court at the
time of the commencement of the action; the domicile of the defendant
within the jurisdiction of the foreign Court and the submission by
the defendant to the jurisdiction of the foreign Court. Under the
second requirement the effect of provisional and default judgments
requires special consideration. The plaintiff has paid no attention,
whatsoever, to these requirements. The plaintiff has simply come
along, armed with a default judgment, and asked for summary judgment.
residence or domicile of the defendant within the jurisdiction of the
South African Court is not alleged. An attempt was made from the bar
to argue that the defendant had submitted to the jurisdiction of the
South African Court by choosing 29 Gillespie Street Durban as his
domicillium citandi et executandi. This is clearly a matter which
should have been pleaded. There is no indication on the papers
whether any application for rescission of the default judgment was
made or is pending before the South African Court. All these are
matters in which the plaintiff was obliged to satisfy the Court
before applying for summary judgment. The plaintiff has failed to do
application for summary judgement is dismissed with costs.