CCT101/12

[2013] ZACC 22

2013 (5) SA 325 (CC)

2013 (10) BCLR 1103 (CC)

Mogoeng CJ Majority judgment

Zondo J separate judgment

Jafta J separate judgment

27 June 2013

http://hdl.handle.net/20.500.12144/3693

Application for leave to appeal against a judgment of the SCA: Government of the Republic of Zimbabwe v Fick and Others (657/11) [2012] ZASCA 122 (20 September 2012). See also earlier judgment of the Pretoria High Court: Zimbabwe v Fick and Others (47954/2011, 72184/2011, 77881/2009) [2011] ZAGPPHC 76 (6 June 2011).

Application for leave to appeal against the enforcement of a costs order made by the Southern African Development Community (SADC) Tribunal (Tribunal) against the Republic of Zimbabwe. The main issue was whether South African courts have jurisdiction to register and thus facilitate the enforcement of a costs order made by the Tribunal against a state. The Court held that the South African common law on the enforcement of foreign civil judgments only provided for the execution of judgments of domestic courts of a foreign state. Thus, there was a need to develop the common law to pave the way for the enforcement of judgments or orders made in international tribunals. The Court held that the development of the common law was driven by the need to ensure that lawful judgments are not evaded with impunity by States. Article 32 of the Tribunal Protocol enjoins SADC Member States, including South Africa, to take all execution-facilitating measures, including the development of the common law, necessary to “ensure execution of decisions of the Tribunal.” In the light of section 39 (interpretation of the Bill of Rights), section 1 (the rule of law) and section 34 (the right of access to courts) of the Constitution, courts are obliged to develop the common law to promote access to courts. The Court held that the High Court and Supreme Court of Appeal were correct in enforcing the decision of the Tribunal. The appeal was dismissed. Judgment: Mogoeng CJ (Moseneke DCJ, Froneman J, Mhlantla AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo J except [44] to [46] concurring). Separate concurrence: Zondo J. Minority: Jafta J.