The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July ...
The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.
The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.
On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.
The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.
The defendant has not satisfied either the Frankfurt or the Botswana judgment.
The plaintiff's claim in this Court is founded on the Frankfurt judgment.
The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.
At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.
Following these concessions, the issues for determination in casu are as follows:
(a)...,.
(b)...,.
(c) Whether the Frankfurt judgment is contrary to natural justice because of the failure to serve court process properly or at all....,.
Service of Court Process
A foreign judgment will not be recognised or enforced where it is shown, on a balance of probabilities, that it was obtained contrary to the rules of natural justice: see VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…,.; Corona v Zimbabwe Iron & Steel Co. Ltd 1985 (2) SA 423 (TkA)…,.
In particular, 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: see JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2 …,.
The defendant herein avers that it was not properly served with legal process instituting KFW's claim in the Frankfurt court.
However, this averment is clearly belied by the certified translation of the Frankfurt court's ruling (at p.5), wherein it is explicitly stated that the defendant was served with the Complaint on 10 April 2005, and, having been required to answer the Complaint within seven (7) weeks, did not give any indication of its willingness to defend within that time limit.
There is nothing in the papers to counter this position.
It follows that the defendant has failed to establish, on a balance of probabilities, any fundamental violation of the rules of natural justice such as to warrant the non-recognition of the Frankfurt judgment.
