PATEL
J: The
plaintiff in this matter has issued summons for payment of the sum of
EUR 6,640,295.94 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)
Whether the deed of assignment between KFW and the plaintiff is a
mere sham depriving plaintiff of any locus
standi
to sue on the deed.
(b)
Whether the plaintiff has locus
standi
to claim any interest beyond the assigned capital amount.
(c)
Whether the Frankfurt judgment is contrary to natural justice because
of the failure to serve court process properly or at all.
(d)
Whether part of the amount claimed by the plaintiff before the
Frankfurt Regional Court had prescribed at the time that the claim
was instituted.
(e)
Whether the Frankfurt award was unenforceable ab
initio
in the absence of any executable assets belonging to the defendant in
Germany.
(d)
Whether or not the Frankfurt judgment is final and conclusive for the
purposes of its recognition and enforcement in this country.
Recognition
and Enforcement of Foreign Judgments
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.
See
Joubert (ed.): The
Law of South Africa
(First Reissue, 1993) Vol. 2 at para. 477. See also Jones
v Krok
1995 (1) SA 677 (A) at 685B-E; Purser
v Sales
2001 (3) SA 445 (SCA) at 450D-G; Gramara
(Pvt) Ltd & Another v Government of the Republic of Zimbabwe &
Others
HH169-2009 at pp. 6-8.
Validity
of Deed of Assignment
On
21 July 2009, KFW instituted proceedings against the Government of
Zimbabwe in the High Court of South Africa to enforce an arbitral
award rendered on 5 December 2006 by the International Court of
Arbitration. This award relates to repayments due under two loan
agreements (Nos. F2971 and F3040), including the amount assigned to
the plaintiff.
In
this regard, the defendant contends that, if the assignment were
valid and genuine, KFW qua
assignor would have divested itself of any right or interest in the
debt assigned. Therefore, inasmuch as the assignor is claiming the
amount assigned in other litigation, it must be inferred that the
deed of assignment between KFW and the plaintiff is a mere sham.
In
my view, the defendant's position is clearly misconceived for the
following reasons.
In
the deed of assignment between KFW and the plaintiff, the former has
assigned to the latter its rights to the debt claimed as against the
defendant. This assignment does not embrace KFW's rights as against
the Government of Zimbabwe in its capacity as guarantor under the
loan agreements in question. These are separate rights founding a
separate cause of action and KFW is undoubtedly entitled to proceed
against the Government on its guarantees through separate litigation.
This should not entail any double jeopardy to the defendant or unjust
enrichment of the plaintiff, as anything recovered on either claim
must obviously be set-off against the amount recovered through the
other.
It
follows that there is nothing untoward in the assignment between KFW
and the plaintiff and that the latter is duly vested with the
requisite locus
standi in judicio
to claim the debt assigned.
Claim
for Interest
In
terms of clause 1.1 of the deed of assignment, KFW transferred to the
plaintiff by way of assignment “the
claim for payment of the Assignor under the loan agreements Nos.
F2971 and F3040………… up to an amount not exceeding
EUR6,640,295.94 against Zimbabwe Iron & Steel Company,…………
as awarded by the judgment of the District Court in Frankfurt am Main
dated July 25, 2006”.
In
the instant case, the plaintiff claims the entirety of the Frankfurt
award, i.e.
the capital sum of EUR6,640,295.94 as well as interest at varying
rates on diverse amounts from 30 December 1999.
It
is axiomatic that a litigant is only entitled to claim that in which
he has a legal right or interest.
The
plaintiff herein clearly has no locus
standi
whatsoever to claim anything more than the assigned amount of
EUR6,640,295.94.
Adv.
Morris
quite correctly conceded this point and abandoned the plaintiff's
claim for interest as set out in the Summons and Declaration.
However, he then sought to substitute a claim for interest at the
prescribed rate of 5% per annum, calculated from 25 July 2006, being
the date of the Frankfurt ruling.
Mr.
Muchada
did not appear to raise any objection to the proposed amendment.
Despite
this apparent consensus between counsel, I perceive one particular
difficulty with the revised claim for interest.
What
is essentially sought in
casu
is the recognition and enforcement of a foreign judgment as embodied
in a private treaty in the form of a deed of assignment. Any such
recognition and enforcement may only be granted on the face of the
judgment as translated into the deed of assignment.
Accepting
the original unamended claim for interest, as I have already stated,
involves granting to the plaintiff more than what it owns. Acceding
to the amended claim for interest entails having to modify the
express terms of the foreign judgment sought to be recognised and
enforced.
In
my view, neither of these avenues is available to the plaintiff. It
must be confined to the amount awarded by the Frankfurt court as
recast and transferred to it through the deed of assignment.
For
the sake of completeness, I should add that I might have been
prepared to accede to a revised claim for interest at the prescribed
rate, either from the date of issuance of the Summons or from the
date of judgment in
casu.
However,
that is not what was specifically sought before me and I am not at
liberty to entertain any such claim mero
motu.
Service
of Court Process
As
I have indicated earlier, 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) at p. 999; Corona
v Zimbabwe Iron & Steel Co. Ltd
1985 (2) SA 423 (TkA) at 425-426.
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, op.
cit.,
at para. 477.
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 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.
Prescription
of Claim
According
to the defendant, part of the loans founding KFW's claim had
prescribed under the law of Zimbabwe by the time that KFW instituted
proceedings in the Frankfurt court.
In
this regard, the defendant refers the Court to the loan repayment
schedules set out in the two loan agreements (Nos. F2971 and F3040)
and contends that all the amounts due for repayment on or before 31
September 2001 had prescribed at the relevant time. The defendant
further contends that the judgment of the Frankfurt court itself,
delivered on 25
July 2006, had prescribed within 3 years and that the plaintiff's
action in this Court, filed on 15
October
2009, was instituted out of time.
I
must confess that I find it somewhat difficult to comprehend the
defendant's contentions on prescription.
First
and foremost, the defendant is unable to state with any certainty
when the proceedings in the Frankfurt court were instituted and,
therefore, what the cut-off date should be for the purposes of
prescription before that court.
Secondly,
even if the cut-off date argued for by the defendant is accepted, I
note that the repayments due on or before that date constitute only
about 20% of all the repayments owing to KFW.
Thirdly,
the schedules referred to deal only with capital repayments and there
is no indication as to the quantum of interest payable on the loans
and the due dates for payment of such interest.
Finally,
the ruling of the Frankfurt court (at p. 4 of the certified
translation) refers to a letter of demand for all amounts owed by the
defendant exceeding Euro 50 million, while the amount actually
claimed by KFW in the Frankfurt court is no more than Euro 6.6
million (together with interest).
On
these facts, it seems to me virtually impossible to ascertain
precisely what amounts were owed under the loan agreements and when
such amounts became due and payable. Therefore, without further
documentary and oral evidence being lead, any attempt at this stage
to determine what has prescribed would be an exercise in utter
futility.
In
any event, quite apart from the aforementioned evidential
difficulties, there is considerable merit in the plaintiff's
submission that prescription is a substantive matter and, as such,
falls to be determined by the lex
causae
and not the lex
fori.
See Laurens
N.O. v Von Hohne
1993 (2) SA 104 (W) at 121.
Under
the loan agreements in
casu
(Article 10.2 of Loan No. F2971 and Article 9.2 of Loan No. F3040)
the loans are governed by the law of the Federal Republic of Germany.
It
is that law that is the lex
causae
and it is that law that determines the question of prescription.
In
this regard, the defendant has not adduced any evidence as to the
German law of prescription.
In
any event, it is not competent for this Court to review the
correctness or otherwise of the Frankfurt court's determination, if
any, as to whether or not KFW's claim had prescribed under the law
of Germany.
In
proceedings for the recognition of a foreign judgment, it would be
quite improper to pronounce upon the merits of any issue of fact or
law tried by the foreign court and to review or set aside its
findings. See Joubert, op.
cit.,
at para. 476.
As
regards the prescription of the Frankfurt judgment itself, I concur
with counsel for the plaintiff that the effect of that judgment was a
novatio
necessaria
of the original debt sued upon. However, contrary to counsel's
submission, such novatio
does not necessarily entail the creation of a new obligation.
Nevertheless, the clear effect of the judgment is to provide a new
right of action enforceable as such. See Commercial
Bank of Zimbabwe Ltd v MM Builders & Suppliers (Pvt) Ltd &
Others
1996 (2) ZLR 420 (H) at 436-437.
If
one applies the prescription law of Zimbabwe to this new right, i.e.
section 15(a)(ii) of the Prescription Act [Cap
8:11],
it is evident that a judgment debt only prescribes after 30 years.
In
this context, given the all-embracing definition of “debt” in
section 2, there is nothing in the Act to suggest that the
prescription period of 30 years applies only to local judgments and
does not extend to foreign judgments. Thus, even as regards the
Frankfurt judgment, it is abundantly clear that the plea of
prescription does not avail the defendant.
Enforceability
without Executable Assets
Under
the loan agreements in question (Article 10.3 of Loan No. F2971 and
Article 9.3 of Loan No. F3040) the parties expressly agreed that the
place of jurisdiction for all litigation in connection with the loans
would be Frankfurt/Main in the Federal Republic of Germany. It is
therefore perfectly clear that the defendant specifically submitted
to the jurisdiction of the Frankfurt court.
The
defendant avers that the Frankfurt judgment could not have been
enforced by execution in Germany as the defendant had no executable
assets in that country at that time to satisfy the judgment in whole
or in part.
In
this regard, Mr. Muchada
contends that the mere submission of the defendant to the
jurisdiction of the Frankfurt court is not enough to render its
judgment effective.
Mr.
Morris
counters that submission to the Frankfurt court is sufficient and
that the defendant should have raised the effectiveness of its ruling
before that court and not in the present proceedings.
The
principle of effectiveness that underlies the law of jurisdiction, in
its absolute sense, is that the court will only have jurisdiction if
it controls the person or property of the defendant, as the mere
consent or submission of the defendant to the jurisdiction of the
court affords no absolute guarantee that the court's judgment will
be effective. See Forsyth: Private
International Law
(4th
ed.) at p. 215.
However,
as is further explained by the learned author, at pp. 215-216:
“today
the doctrine of effectiveness is artificial and conceptual rather
than realistic. And indeed even those cases that would most severely
restrict submission do not reject it altogether. Moreover, submission
is widely recognised in legal systems across the world as a ground of
international competence justifying the enforcement of the judgment
of a foreign court to which the defendant has submitted. Thus, on the
whole, a judgment based on submission will be effective. It is
submitted that effectiveness in this slightly attenuated sense should
suffice to justify the exercise of jurisdiction on the grounds of
submission. The fact is that most other legal systems……… give
wide recognition to and encourage submission as a ground of
jurisdiction.……… It is to the benefit of international commerce
that this should be so.……... As economic development in Southern
and Central Africa proceeds, there is no reason, other than archaic
restrictions on the exercise of jurisdiction, why the local courts
should not develop an international role akin to that of the
Commercial Court in London.”
Similar
sentiments predicated on policy grounds were expressed in Richman
v Ben-Tovim
2007 (2) SA 283 (SCA) at 289, where ZULMAN JA observed that:
“there
are compelling reasons why……… in this modern age, traditional
grounds of international competence should be extended, within
reason, to cater for itinerant international businessmen. In
addition, it is now well established that the exigencies of
international trade and commerce require 'that final foreign
judgments be recognised as far as is reasonably possible in our
courts, and that effect be given thereto'.”
As
I have stated earlier, the enforcement of a foreign judgment requires
that the foreign court had jurisdiction in the international sense
according to the principles of our law on the jurisdiction of foreign
courts. See Joubert, op.
cit.,
at para. 477; Schulze: International
Jurisdiction in Claims Sounding in Money
2008 20 SA Merc. LJ at pp. 61-62.
Thus,
the mere fact that the foreign court may have had jurisdiction under
its own laws is not conclusive. See Reiss
Engineering Co Ltd v Insamcor (Pty) Ltd
1983 (1) SA 1033 (W) at 1037.
The
rules for assessing the international jurisdiction of a foreign court
are expounded by Pollak: The
South African Law of Jurisdiction
(1937) at p. 206 ff. The overall position is summarised, at p. 219,
as follows.
A
foreign court has jurisdiction to entertain an action for a judgment
sounding in money against a natural person if, at the time of the
commencement of the action, the defendant is physically present in
the State to which the court belongs or
is domiciled or resident within that State or
has submitted to the jurisdiction of that court. According to Pollak,
there are no other grounds for jurisdiction.
This
summation was cited with approval in the Reiss
Engineering
case, supra,
at 1037-1038, and followed in Richman's
case, supra,
at
289.
With
specific reference to submission as a basis of jurisdiction, the
position is reiterated by Pistorius: Pollak
on Jurisdiction
(2nd
ed. 1993) at pp. 162-163:
“Submission
has been accepted in our law as an acceptable basis for international
competence. As in the case of local jurisdiction submission may be by
way of agreement or by a defendant acquiescing by his conduct in such
jurisdiction after litigation against him has commenced. In the case
of agreement, this may be pursuant to a contract between the parties
which specifically provides for submission in the event of disputes
or by an express or tacit submission after litigation. Submission by
conduct may be difficult to prove and……… the conduct must be of
such a nature that it is consistent only with acquiescence.”
Again,
in relation to claims sounding in money, Forsyth, op.
cit.,
at p. 395, encapsulates the modern law as follows:
“It
is widely recognised, by both writers and the decided cases, that
submission by the defendant to the jurisdiction of the foreign court
grants to that court international competence even if it would not
otherwise enjoy that competence.”
As
regards submission by agreement, the learned author, at pp. 399-400,
states that:
“In
accordance with the general principles of the law of contract,
parties may, either expressly or impliedly, enter into binding
agreements to submit their dispute to a particular court which might
otherwise lack jurisdiction……….………express submission
where the parties agree to submit in the ipsissma
verba
of their contract. Provided such submission is valid under its proper
law, such an agreement is undoubtedly effective.”
Having
regard to the foregoing cases and commentaries, I conclude that a
defendant's express submission to the jurisdiction of a foreign
court suffices, ipso
facto,
and without any further jurisdictional ground, to endow that court
with the requisite international competence, enabling and allowing
the recognition and enforcement of its judgments under the common
law.
I
am fortified in that conclusion by the policy considerations that I
have cited earlier, which are obviously germane to any analysis of
international competence according to the principles of our law
governing the jurisdiction of foreign courts.
In
that context, the tenets of international comity, informed by the
inexorable trans-nationalisation of trade and commerce, dictate that
our courts should be astute to extend rather than constrict the scope
of international jurisdiction and competence as regards claims
sounding in money.
On
that basis, there can be no objection to a more liberal approach that
recognises the enforceability of a foreign judgment founded on the
submission of the defendant, whether it be a natural person or an
artificial entity, to the jurisdiction of the foreign court in
question.
I
accordingly take the view, in keeping with principle as well as
policy, that the explicit contractual submission of the defendant in
casu
to the jurisdiction of the Frankfurt court suffices for the purpose
of recognising its judgment. This is so regardless of the fact that
the defendant may or may not have had any executable assets in
Germany at the time of the commencement of the plaintiff's action
in Frankfurt.
Finality
and Conclusiveness of Frankfurt Judgment
The
defendant avers that the judgment that the plaintiff seeks to enforce
is ex
facie
not one that is final and conclusive and, as such, it cannot be
enforced in
casu.
In
this respect, it is specifically pleaded by the plaintiff, in
paragraph 4 of its Declaration, that the Frankfurt judgment “is
final in its terms and remains valid and effective”.
Consequently, it is submitted by counsel for the plaintiff that the
defendant cannot challenge the validity and finality of the judgment
by way of special plea and can only raise that issue on the merits.
It
is further argued by Mr. Morris
that
the finality or otherwise of the judgment under German law is a
matter for the defendant to establish. This contention is disputed by
Mr. Muchada
who submits that the burden in this regard falls squarely on the
plaintiff.
The
requirement of finality and the burden of proof in that regard are
lucidly adumbrated by Joubert, op.
cit.,
at para. 477:
“A
foreign judgment will not be enforced unless it is a final judgment
and has the effect of res
judicata
according to the law of the forum that pronounced the judgment. The
fact that it is subject to appeal does not affect its finality for
the purposes of recognition, but if an appeal is actually pending the
South African court will probably exercise its discretion not to
recognise the judgment. Finality must be alleged and proved by the
party seeking to enforce the judgment.”
According
to Forsyth, op.
cit.,
at pp. 427-428:
“A
provisional judgment of an internationally competent foreign court
will not be enforced or recognised. After all, it would be
undesirable if the foreign court's judgment were enforced and
thereafter the foreign judgment was set aside or altered by the court
which made it in the first place. Consequently, any foreign judgment
must be final and conclusive before it will be recognised or
enforced.
Our
courts have largely accepted the English principles in this regard;
thus what is required is that the judgment was unalterable by the
court which pronounced it. But it need not be absolutely unalterable.
Indeed, the fact that a particular judgment is appealable or has been
appealed against in the legal system from which it comes does not
affect the finality of the judgment. Although the original judgment
may be upset on appeal it is not then altered by the court which made
it. It appears further, however, that where the rendering court has
suspended its judgment pending an appeal, such a judgment will not be
enforced locally, and, moreover, where an appeal is pending although
the effect of the judgment has not been suspended the court has a
discretion not to enforce the judgment.……
The
onus of establishing that a foreign judgment is final rests,
naturally, on the party seeking to enforce it; but once this is shown
the 'defendant must place before the Court the facts relating to
the impending appeal and such other relevant facts as may persuade
the Court to exercise its discretion in granting a stay of
proceedings.' [per Jones
v Krog
1995 (1) SA 677 (A) at 692].”
With
reference to default judgments, the learned author opines as follows,
at pp. 428-430:
“The
position in regard to default judgments – which may or may not be
rescinded by the court which rendered them – is less clear.
Under
German law, for example, a defendant against whom a default judgment
has been given has the privilege of Einspruch
available (if exercised within two weeks of the judgment being served
on him) in terms of which the case against him is automatically
reopened without the defendant needing to excuse the default. Such a
judgment is certainly not final while the defendant can exercise this
privilege; but thereafter it must be considered final.
Other
legal systems, however, do not build time limits into their rules. In
our own law, for example, it appears that, notwithstanding certain
cases to the contrary, a High Court judgment can be rescinded at any
time on grounds that would normally entitle defendant to restitutio
in integrum
or 'some other just cause'. Such judgments are in theory not
final for they may still be altered by the court which made them.
………
there
is a strong case for creating an exception to the 'final and
conclusive' rule in the case of default judgments. If this is not
done default judgments, even when granted by an internationally
competent court, will often be worthless outside the territory of
that court. Moreover, in the absence of a time limit after which the
default judgment cannot be set aside by the court which pronounced
it, only an application by the defendant to have the judgment set
aside can, when dismissed, transmute the judgment into an
internationally enforceable one.………
The
courts in several jurisdictions have been creating such an exception
(subject to safeguards) and the local courts should do so too.”
As
regards proof of the finality of a foreign judgment, Van Winsen,
Cilliers & Loots, op.
cit,
at pp. 998-999, enunciate the position concisely:
“The
foreign judgment must, however, be a final and conclusive one, and
the finality and conclusiveness of the judgment should appear ex
facie
the record. It should be alleged in the summons that the judgment is
a final one, and the law and facts which make it final should be
stated if on the face of it the judgment appears to be provisional.”
With
reference to the requisite formalities, the learned authors continue,
at pp.1000-1001:
“It
is essential that all the papers should be in order before a foreign
judgment will be enforced. The plaintiff must therefore have before
the court a properly authenticated copy of the judgment upon which
provisional sentence is sought, and if it does not appear from that
that the judgment is a final one, the plaintiff should annex a
certificate from the competent authority in the foreign tribunal to
show that the judgment is or has become final. If the judgment is in
a foreign language, a due and proper translation of it must be
annexed to the summons. The documents must show that the translation
was made either by a sworn translator of the court or by a person
otherwise qualified to translate the judgment.”
In
the instant matter, the plaintiff has annexed to its Declaration
certified copies of the original judgment and what purports to be a
certified translation of that judgment. However, it is not clear that
the copy of the original judgment has been properly authenticated.
Moreover, there is no indication on the papers that that the
translation was made by a sworn translator of the Frankfurt court or
by a person otherwise qualified to translate the judgment.
Be
that as it may, these are technical issues that may well be addressed
and rectified should the matter proceed to trial.
What
is more significant at the present stage of the proceedings is the
content of the record as it stands and what appears on the face of
the Frankfurt judgment itself.
It
is not in dispute that the judgment was granted by default and that
the defendant has neither applied for its rescission nor appealed
against it. In that regard, nothing has been placed before this Court
as to whether or not the period for appealing against the judgment or
for seeking its rescission has expired (cf.
Forsyth, op.cit.,
at p. 428) and, without such clarification, I am not at liberty to
assume the correct position under German law at the present time.
In
any event, quite apart from the possibility that the judgment may be
susceptible to appeal or rescission (which seems unlikely given the
passage of time since it was delivered in July 2006) what is more
crucial for present purposes are the actual words employed in the
judgment itself.
At
page 2 of the certified translation, it is decreed that “The
judgment is provisionally enforceable”
and, at page 6 of the judgment, it is declared that “The
decision about preliminary enforceability is based on ss 708 No. 2
ZPO”.
What
then emerges ex
facie
the Frankfurt judgment is that it is provisional or preliminary and
only provisionally enforceable.
The
word “preliminary” normally denotes something that is initial,
first, opening or introductory; the term “provisional” in
ordinary parlance means temporary, interim, conditional or
impermanent. In legal jargon “provisional” is similarly defined
in Black's
Law Dictionary
(6th
ed.) as:
“temporary,
preliminary, acceptable in the existing situation but subject to
change or nullification”.
Having
regard to all of these connotations, it seems unequivocally clear
from the record that the Frankfurt judgment is purely provisional in
nature and, therefore, subject to change or nullification.
In
this regard, the plaintiff has failed to discharge the onus upon it
to demonstrate that the ruling is final and conclusive or to explain
the esoteric reference to “ss 708 No. 2 ZPO” upon which it
appears to have been based.
The
plaintiff has merely proffered the bald assertion in its Declaration
to the effect that the judgment is final.
It
has not furnished any certificate from a competent authority in the
Frankfurt court to show that the judgment is or has become final. Nor
has it adduced anything to counter the defendant's special plea,
explaining the relevant law of Germany, by way of written law or
judicial decisions, as would conform with the requirements of section
25 of the Civil Evidence Act [Chapter
8:01].
In
the premises, it must be held that the judgment in
casu
is not final and conclusive for the purposes of its recognition and
enforcement in this jurisdiction and that, for that reason, this
Court must decline to recognise and enforce the judgment.
Disposition
In
the final analysis, many of the issues for determination in
casu must
be answered in favour of the plaintiff,
save
for the second question, pertaining to its claim for interest, and
the last question, relating to the finality and conclusiveness of the
judgment that it seeks to enforce.
This
last issue is critical to the plaintiff's case and it is one that
the plaintiff has clearly failed to establish on the record.
Accordingly,
the defendant's Plea in Abatement challenging the enforceability of
the Frankfurt judgment succeeds on that single ground and must
therefore be upheld.
In
the result, the plaintiff's claim is dismissed with costs.
Gill,
Godlonton & Gerrans,
plaintiff's legal practitioners
Dube,
Manikai & Hwacha,
defendant's legal practitioners
