Publicly Available Asset Information

In South Africa, the following public registries may be used to ascertain the asset position of another party:

• The Deeds Office registers and maintains an immovable property registry. The Deeds Registry may provide information on the registered owner of a property, the encumbrances on that property (if any) and the purchase price of the property.
• The Companies and Intellectual Property Commission (CIPC) maintains a registry of all companies incorporated and registered in South Africa. A CIPC search of an individual or company may establish the directorship, auditors and registered address of that individual or company. CIPC also maintains registries of Designs, Patents and Trademarks.
• Section 26 of the Companies Act 71 of 2008 (CIPC) provides a mechanism for any person to request an inspection and take copies of, inter alia, a company’s:
1. memorandum of incorporation;
2. annual financial statements;
3. notes and minutes of annual meetings; and
4. securities/share register.
• Certain credit bureaus may also be engaged to conduct background and asset checks.

As recently as May 2023, an amendment to the Companies Act introduced a requirement for all incorporated companies to file and update records of their beneficial owner(s) and interest(s). It is not yet known whether companies’ beneficial owner information will become publicly available through the methods detailed above.

Anti-dissipation Interdicts

An anti-dissipation interdict, being a temporary measure, shares the same requirements as a general temporary interdict in South Africa. There are, however, additional conditions to fulfil for an anti-dissipation interdict. These requirements were outlined in the seminal case of Knox D’Arcy and Others v Jamieson and Others 1996 (4) SA 348 (A). The applicant must demonstrate that:

• the respondent possesses attachable assets within South Africa;
• the applicant has a prima facie valid cause of action against the respondent, whether in delict (tort) or contract; and
• the respondent is currently dissipating assets or is likely to do so with the particular intent of evading the applicant’s claim; this is the most challenging requirement to fulfil because the applicant must successfully prove, on a balance of probabilities, a specific mental state of the respondent (this entails demonstrating that the respondent is actively disposing of or concealing their assets or is likely to do so, with the deliberate intention of undermining the applicant’s claims).

Freezing Interdicts

Although the concept of a “worldwide Mareva injunction” has not yet been adopted in South Africa, the utility of such an injunction has been acknowledged by South African courts as a valuable mechanism that could be extended into South African law in the future.

Types of domestic judgments available in South Africa include:

• ex parte orders, which are orders obtained by one party without notice to the other, typically heard by a judge in chambers and not in open court; these orders will only be entertained by the court in exceptional circumstances where a limitation of audi alteram partem would be justified;
• orders for monetary claims;
• declarators;
• interdicts (both interim and final), including orders for specific performance;
• default judgments in circumstances where either an appearance to defend or a plea is not entered by a defendant;
• summary judgments, which can be obtained after plea in respect of liquid or fixed monetary claims;
• anti-dissipation interdicts (see 1.1 Options to Identify Another Party’s Asset Position);
• security for costs if the plaintiff or applicant is a foreign peregrinus;
• vindicatory relief;
• spoliation orders; and
• Anton Piller orders to preserve evidence for a cause of action where there is a reasonable belief that such evidence would be spirited away or destroyed if not preserved.

Attachment of Assets

Judgments are enforced by execution process through the office of the Sheriff of the High Court of South Africa. The process of attaching property to satisfy a judgment must be distinguished from other instances where attachment may be allowed, such as interim attachment of property or attachment to establish or confirm jurisdiction.

In terms of Rule 45(1) of the Uniform Rules of the High Court (“the Rules”), a judgment creditor may issue a writ of execution against the movable or “disposable” property owned by the judgment debtor once the court has ruled on a money judgment in the creditor’s favour. The language used in the writ must precisely conform to the wording of the court’s order without any deviation, and in the form prescribed by the Rules. The writ, issued by the High Court Registrar, must then be delivered to the Sheriff of the High Court, who is responsible for executing the attachment of the judgment debtor’s movable or disposable property.

The Sheriff or their assistant is authorised to visit the judgment debtor’s residence, place of employment, or business to identify movable and/or disposable property for attachment, inventorying, and removal into the Sheriff’s custody (Rule 45(3)(c)).

If any movable property is attached in the process above, the Sheriff must sell it through a public auction to the highest bidder (Rule 45(7)). Prior to the sale, the Sheriff must advertise the auction in two appropriate newspapers that circulate in the district where the property was attached. The auction must take place no sooner than 15 days after the property was seized.

If there is no movable property to be attached in the first instance, the Sheriff may attach incorporeal property (Rule 45(8)). Examples of incorporeal property capable of attachment include:

• the right to money in a banking account (in this regard, it is not necessary for the writ to specify any bank account numbers, only the identity of the judgment debtor);
• intellectual property rights;
• shares in a registered and incorporated company;
• a lease or a bill of exchange, promissory note, bond, or other security for the payment of money;
• right, title and interest in a legal action or in an appeal; and
• book debts.

Only once the Sheriff confirms the absence of movable or incorporeal property available for attachment may the judgment creditor proceed to execute against immovable property.

The attachment of immovable property is governed by Rule 46. A writ of execution against immovable property must include a specific reference to the Sheriff’s return of service regarding the respondent’s movable property, confirming the insufficiency of movable assets to satisfy the order. It must also provide a comprehensive description and street addresses of the property to be attached.

In terms of Rule 46(3), the attachment of immovable property is achieved by the Sheriff sending a written notice, via prepaid registered post, to the owner of the immovable property, the Registrar of Deeds, and the occupier of the property if the occupier is not the owner.

Garnishee and Emolument orders

If the Sheriff becomes aware that there are debts owed to the judgment debtor by a third person that may be attached, the Sheriff has the authority to attach those debts if requested by the judgment creditor in a writ of execution issued by the Registrar of the High Court (Rule 45(12)). The Sheriff will then serve a notice on the third party (referred to as the ’garnishee’), demanding payment of a portion of the debt that is enough to satisfy the writ.

Execution against a garnishee is separate and distinct from an emolument or garnishee order by a court. Upon an ex parte application by the judgment creditor, the court has the authority to order the attachment of a debt currently or in the future owed or accruing to the judgment debtor by a third party. This may include a portion of the salary of the judgment debtor earned from his/her employer. Upon considering the application, the court has the authority to issue a garnishee order, directing a third party (garnishee) to pay a portion of the debt that is adequate to cover the judgment debt and costs. If the garnishee fails to make the payment, the court may require their appearance before the court on a specified day to explain why they should not pay the debt. If there are other outstanding claims from different creditors, the court has the discretion to defer the application to allow the judgment debtor to apply for an administration order.

Insolvency

A judgment debtor is considered to have committed an act of insolvency for the purposes of the Insolvency Act 24 of 1936 (”the Insolvency Act”) when they fail to provide the Sheriff executing a writ with enough disposable property to satisfy it. It may also be considered an act of insolvency if the Sheriff’s return of the writ indicates that the judgment debtor does not possess enough disposable property to satisfy the judgment (section 8(b) of the Insolvency Act).

If an act of insolvency is established, it is open for the judgment creditor to follow their rights afforded by the Insolvency Act, such as sequestrating or liquidating the judgment debtor as applicable.

Enforcement of Interdicts

Once a court grants an interdict, it becomes effective immediately without the need for formal service on the respondent.

Should a respondent breach the terms of an interdict, the applicant may apply for contempt of court.

The duration of and expenses involved in the enforcement process will naturally differ based on the complexities of the challenges presented. Generally, one may expect the enforcement of a domestic judgment to take a matter of weeks to several months, depending on the intricacies of the specific issues at hand.

One may expect to incur, inter alia, attorneys’ fees, tracing agent costs and Sheriff’s fees during the course of this process.

Apart from the publicly available methods of determining a party’s assets as discussed in 2.1 Types of Domestic Judgments, there are no particular post-judgment legal procedures available to determine a defendant’s assets.

Accordingly, a key consideration before the launch of any legal proceedings is a risk assessment of the prospects of recovery against the defendant.

Domestic judgments are subject to appeal or review.

An appeal involves a reconsideration of the matter on the merits as they appear in a transcript of evidence in the case of a trial in the court below, or in an affidavit in the case of an application. This may be limited to a consideration of the evidence or information on which the decision was given, or in certain limited circumstances, an appeal court may consider additional evidence.

A review of a judgment of the lower courts, both civil and criminal, occurs when there are allegations of serious procedural irregularities that occurred during the proceedings.

When an application for leave to appeal against a High Court judgment is filed, the enforcement and implementation of that judgment is automatically suspended until the appeal is adjudicated (section 18(1) in conjunction with section 18(5) of the Superior Courts Act 10 of 2013). A party may apply to court under section 18(3) of the Superior Courts Act for immediate implementation of an order pending appeal if they can demonstrate, on a balance of probabilities, that they will suffer irreparable harm if the operation of the order remains suspended, and that the opposing party will not suffer irreparable harm.

A defendant may apply to set aside a default judgment granted through Rule 42 or the common law. This application does not automatically suspend the default judgment. For suspension, an application under Rule 45A is required. To successfully set aside a default judgment, a defendant must demonstrate, inter alia, good cause for rescinding the judgment. For example, a default judgment may be set aside if a defendant can demonstrate that the default was through no fault of his or her own, and that he or she is not in wilful default, or can demonstrate a bona fide defence to the claim.

There are no types of domestic judgments that cannot be enforced in South Africa.

Since the enactment of the Constitution of the Republic of South Africa, a number of types of orders have been judicially considered and declared unconstitutional. One such order that is now unconstitutional is an arrest suspectus de fuga. This was an order available to a creditor who possessed reasonable grounds to suspect that a debtor, against whom the creditor has filed or intends to file a legal action to recover a debt, is on the verge of leaving the court’s jurisdiction to evade their debt obligations.

A judgment creditor may execute a judgment against the state.

There is no central register of all domestic judgments.

Certain third-party credit bureaus do maintain registries of domestic judgments against debtors which may reflect in credit score searches.

Unlike foreign arbitral awards, South Africa has not entered into any treaties for the reciprocal enforcement of foreign commercial judgments.

Foreign judgments are not directly enforceable in South Africa, but are recognised as a cause of action enforceable by the South African Courts if specific requirements are met. These requirements emanate from case law, and were confirmed in the pivotal case of Jones v Krok 1996 (2) SA 71 (T) as follows:

• The foreign judgment must be final, which means it must be unalterable by the court which gave it. South African Courts have discretion to enforce foreign judgments that are pending appeal to a higher court.
• The foreign court must have had international competence according to South African law. This means that the foreign court must have had jurisdiction over the defendant according to its own laws and in addition the defendant must have been either a resident of or physically present in that foreign jurisdiction at the start of the legal proceedings, or have voluntarily submitted to the court’s jurisdiction through a contract or by engaging in conduct that demonstrates their defence of the case on the merits in that particular court.
• The judgment must not be contrary to South African public policy. In this regard, in South African cases of contract breach and delict (tort), the injured party is entitled only to compensation for the actual damages suffered (Aquilian liability). Punitive damages are not recognised under South African law and are generally seen as conflicting with South African public policy. However, in the case of Jones v Krok 1996 (2) SA 71, the court commented that the mere fact that foreign awards are based on principles not recognised in South Africa does not automatically make them contrary to public policy. Whether a foreign judgment goes against South African policy depends on the specific circumstances of each case.
• The judgment must not have been procured through fraudulent means.
• The judgment must not involve the enforcement of penal or revenue laws of the foreign state.
• Enforcement must not be prohibited by the Protection of Businesses Act 99 of 1978. This Act requires ministerial consent for the enforcement of foreign judgments specifically and directly related to transactions involving raw materials. However, in all other cases, ministerial consent is not required for enforcement of foreign judgments.

The Enforcement of Foreign Civil Judgments Act 32 of 1988 establishes provisions for enforcing foreign judgments from specific countries through registration in the Magistrates’ Courts of South Africa (lower courts). However, despite this Act’s existence for nearly 30 years, only one country (Namibia) has been designated as eligible for enforcement under this legislation. Currently, there is no indication of additional countries being designated.

Apart from the jurisdictional competence set out above, a South African Court must be satisfied of its own jurisdiction. In this regard:

• if a South African plaintiff seeks enforcement against a foreign defendant, they must do so by attaching an asset in South Africa that belongs to the foreign defendant, regardless of its value; or
• when the plaintiff seeking enforcement is also a foreigner, in addition to attaching the defendant’s asset in South Africa, there must be a factor connecting the matter to the South African Court (this could include the conclusion, breach, or performance of a contract within South Africa).

The requirements set out in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments must be met across all types of foreign judgments sought to be enforced in South Africa.

Foreign judgments that fail to meet one or more of the requirements set out 3.1 Legal Issues Concerning Enforcement of Foreign Judgmentswill not be enforced by South African courts.

The South African Courts will not enforce foreign judgments that:

• are repugnant to South African public policy;
• impose penal (punitive) or revenue law of the foreign state; and
• are interim or interlocutory (ie, not final).

Provided that summary or default foreign judgments meet the aforementioned requirements, those orders will be enforced by South African courts.

In cases where a dispute of fact between the parties is not anticipated, the enforcement process entails issuing an application accompanied by an affidavit (on oath) to the relevant court. In cases where a factual dispute is likely to arise, enforcement may be pursued through a summons in a trial action or a provisional sentence summons.

The provisional sentence summons enables a plaintiff to obtain an interim judgment for enforcement, which will become final unless the defendant provisionally pays the judgment debt (against appropriate security provided by the plaintiff) and initiates a principal case. The principal case focuses on the requirements for enforcement and is strictly concerned with those aspects other than the merits of the case that led to the foreign judgment. Care must be exercised when instituting provisional sentence proceedings because the court has discretion to refuse the sentence if it limits the defendant’s constitutional right to a fair hearing, or where the defendant is unable to satisfy the judgment debt.

The foreign judgment must be duly authenticated according to the required procedures for foreign documents in a court submission. South Africa is a signatory to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (the Apostille Convention).

If the foreign judgment is not written in one of the eleven official languages of South Africa, a sworn translation of the arbitration agreement and/or award is required.

A foreign plaintiff may be required to provide security upfront to cover the legal costs of the defendant in the event that the court refuses enforcement.

The duration of and expense involved in the enforcement process will naturally differ based on the complexities of the defences or challenges presented. Generally, one may expect enforcement of a foreign judgment to take around four to twelve months, depending on the intricacies of the specific issues at hand.

One may expect to incur, inter alia, attorneys’ fees, advocates’ fees, and Sheriff’s fees during the course of this process.

South African Courts do not have the authority to review or appeal the merits of a case decided by a foreign court.

A defendant’s defences primarily concern the failure to meet any of the requirements set out in 3.1 Legal Issues Concerning Enforcement of Foreign Judgments. In practice, most defences against the enforcement of foreign judgments pertain to the foreign court’s lack of international competence, public policy, or the limitations imposed by the Protection of Businesses Act, which may prevent enforcement.

South Africa became a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards by acceding to it without any reservations in 1976.

To give practical effect to the New York Convention’s principles within its jurisdiction, South Africa enacted the International Arbitration Act 15 of 2017 (“the International Arbitration Act”), in terms of which the Model Law on International Commercial Arbitration, as adopted by the United Nations Commission on International Trade Law (UNCITRAL), was incorporated into South African law.

The provisions of the International Arbitration Act are applicable to all categories of arbitral awards.  The International Arbitration Act is prescriptive – a foreign arbitral award must be recognised and enforced in South Africa, subject to the exceptions set out below (section 16 read together with section 18 of the International Arbitration Act).

A foreign arbitral award may only be denied recognition or enforcement by a South African Court if that court determines that:

• the subject matter of the dispute is not eligible for arbitration under the laws of South Africa; or
• recognising or enforcing the award would violate the public policy of South (section 18(a)(i) and (ii) of the International Arbitration Act).

A South African court may also refuse to recognise or enforce a foreign arbitral award if the party seeking to defend the enforcement satisfies the court that:

• one of the parties to the arbitration agreement lacked the legal capacity to enter into the agreement under the applicable law for that party;
• the arbitration agreement is invalid based on the law chosen by the parties, or if no law was specified, it is invalid under the law of the country where the award was made;
• they did not receive the required notice concerning the arbitrator’s appointment or the arbitration proceedings, or were unable to present their case;
• the award addresses a dispute that was not anticipated or falls outside the terms of the arbitration reference, or includes decisions on matters beyond the scope of the arbitration reference;
• the composition of the arbitration tribunal or the arbitration procedure did not conform to the relevant arbitration agreement or, if not specified, the law of the country where the arbitration took place; and/or
• the award is not yet binding on the parties, or it has been set aside or suspended by a competent authority in the country where the award was made or under its law (section 18(b)(i) and (vi) of the International Arbitration Act).

Enforcement of foreign arbitral awards must be sought by making application to the relevant High Court of South Africa with jurisdiction by way of affidavit alleging that the requirements for enforcement have been met, annexing:

• the original arbitration agreement and the original arbitral award, duly authenticated according to the required procedures for foreign documents in court submission (South Africa is a signatory to the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (the Apostille Convention));
• a certified copy of the award and the agreement;
• a sworn translation of the arbitration agreement and/or award if either document is not one of the eleven official languages of South Africa; and
• where the defendant is a foreigner, an asset in South Africa must be attached, however the jurisdictional link requirement mentioned above does not need to be fulfilled.

The duration of and expenses involved in the enforcement process will naturally differ based on the complexities of the defences or challenges presented. Generally, one may expect enforcement to take around four to twelve months, depending on the intricacies of the specific issues at hand.

One may expect to incur, inter alia, attorneys’ fees, advocates’ fees, and sheriff’s fees during the course of this process.

The scope of challenges to the recognition and enforcement of arbitral awards is typically confined to instances where the award fails to meet any of the requirements outlined in 4.3 Categories of Arbitral Awards Not Enforced.