This blog was co-authored by candidate attorney Eric Geldenhuys and Adrienne Cloete.

In February 2024, the Supreme Court of Appeal, in Lindsey v Conteh, considered the enforceability of foreign judgments in South Africa. The appellants sought to enforce two writs, one for possession of shares and one for execution of the monetary value of to the shares, granted by the Superior Court of California, through provisional sentence summons in South Africa. The issue was whether the procedure followed to enforce the judgment was appropriate. The court, in finding that the California court orders did not constitute liquid documents nor orders for liquidated amounts in money, and that the correct procedure for enforcement of the foreign judgments had not been followed.

The respondent transferred shares to his own companies without the appellants’ permission. The appellants obtained California court orders instructing the respondent to turn over the shares to the appellants. The appellants argued that the California court orders, read cumulatively, constituted a liquid document, and that the judgment was enforceable in the same manner as a money judgment which could be utilised for purposes of provisional sentence summons.

The SCA referred to Jones v Krok [1994] ZASCA 177 as the leading authority on the enforceability of foreign judgments. A foreign judgment is a cause of action and not directly enforceable in South Africa. The grounds which South African courts will consider when faced with the question of enforceability of a foreign judgment are the following:


(1) The court had jurisdiction to hear the matter;
(2) The judgment is final and conclusive in effect and has not become superannuated;
(3) The recognition and enforcement of the judgment would not be contrary to public policy;
(4) The judgment was not obtained fraudulently;
(5) The judgment does not involve the enforcement of penal or revenue law; and
(6) The enforcement of the judgment is not precluded by the Protection of Businesses Act, 1978.

The court dismissed the appellants’ case on the following bases:


A provisional sentence summons could only be issued if the California court orders constituted liquid documents. Liquid documents are written documents, signed by a defendant or their agent, are unconditional, and demonstrate an indebtedness to the plaintiff. If extrinsic evidence is required to prove the contents of a liquid document, liquidity is generally nullified.


The provisional sentence proceedings were inappropriate as the orders did not constitute liquid documents. South African courts generally will not apply foreign procedural law when adjudicating disputes and the California court processes do not run through South African territory.


Jones v Krok is still the point of departure when determining whether a foreign judgment can be enforced in South Africa. However, the procedure followed to ensure enforcement is critical. In this case, provisional sentence summons was the incorrect procedure. The appellants may have been successful had they followed the steps as set out in the Enforcement of Foreign Civil Judgments Act, 1988.

[Lindsey and Others v Conteh (774/2022) [2024] ZASCA 13 (6 February 2024)]