RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS IN ZIMBABWE
Recognition and Enforcement of Foreign Arbitral Awards
International trade is happening. International business mergers and acquisitions, investments and joint ventures are happening. International Disputes are now inevitable and as such in an effort to regulate disputes, people are increasingly turning to commercial arbitration.
In Zimbabwe the main piece of legislation regulating Arbitration is the Arbitration Act (Chapter 7:15). Zimbabwe has ratified the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the Convention”) which requires courts of contracting states to give effect to private agreements to arbitrate and to recognise and enforce arbitration awards made in the contracting countries. In terms of Article 3 of the Convention, each contracting state shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon. In addition to the aforesaid, Zimbabwe also ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States which was incorporated into Zimbabwean Law by the Arbitration (International Investment Disputes) Act [Chapter 7:03]
Vis-à-vis foreign judgments, it should be noted that judgments sounding in ‘money’ from designated countries are in terms of the Civil Matters (Mutual Assistance) Act [Chapter 8:02] (herein the Act) enforceable in Zimbabwe. In terms of SI 65/98, 360/98, 9/99 and 129/2003, the designated countries are as follows:
• South Africa
• Slovak Republic
The word ‘judgment’ is defined in section 2 of the Act to mean “a judgment or order given or made by any court or tribunal requiring the payment of money, and includes an award of compensation or damages to an aggrieved party in criminal proceedings”.
The word ‘money’ is defined to include an award of compensation or damages to an aggrieved party in criminal proceedings. In terms of section 5 of the Act, a judgment creditor under a judgment from a designated country may apply to an appropriate court for the registration of that judgment in the appropriate court within six (6) years from the date of judgment or a determination of any proceedings by way of appeal or review where such proceedings have been instituted in respect of the judgment.
It must be stated that a foreign judgment constitutes a separate cause of action in Zimbabwe. In the case of Wheeler v Egglestone HH 99-16 the court stated that:
“…a foreign judgment cannot be enforced without invoking internal processes. An individual or entity cannot come into the country brandishing a foreign judgment and run the breadth and width of the country seeking to enforce or execute the judgment on his own.”
Proceedings for the recognition and enforcement of foreign judgments and arbitral awards are usually instituted in the High Court of Zimbabwe. It must be stated that the ordinary action or motion procedure may therefore be followed. The action procedure leads to trial where evidence is led orally. The action procedure must be followed where the party seeking enforcement reasonably anticipates that there will be a dispute of fact which cannot be resolved on the papers. The motion procedure is followed where no dispute of fact which cannot be resolved through documentary evidence is anticipated.
The Act does not therefore override the common law principles that govern the enforcement of foreign judgments. In Gramara (Pvt) Ltd & Another v Government of the Republic of Zimbabwe & Others HH 169-2009
“Insofar as concerns the registration of foreign civil judgments, the relevant statutory provisions presently in force in Zimbabwe are contained in the Civil Matters (Mutual Assistance) Act [Chapter 8:02]. Section 3 of this Act extends the application of the Act to the judgments of any international tribunal designated for that purpose. The word “judgment” is defined in section 2 of the Act to mean “a judgment or order given or made by any court or tribunal requiring the payment of money, and includes an award of compensation or damages to an aggrieved party in criminal proceedings”.
In terms of common law, the general requirements for the recognition and enforcement of foreign judgments were summarized in the case of Tiiso Holdings (Pty) Limited versus Zimbabwe Iron & Steel Company Limited HH 95- 2010, where Justice Patel pointed out that:
“Under the common law, the general requirements for the recognition and enforcement of foreign judgments may be summarised as follows: (i) the foreign court in question had the requisite international jurisdiction or competence according to our law; (ii) the judgment concerned was final and has 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 this country; and (vi) the foreign court must have observed the minimum procedural standards of justice in arriving at the judgment.”
In an application to enforce and execute on a foreign judgment the applicant’s application must be accompanied by a certified copy of the judgment to be executed. If the judgment is in a foreign language it must be translated and certified by the Registrar of the issuing Court confirming that such judgment is final and enforceable together with a brief of the facts leading to the judgment.
Disclaimer: While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.Next Step