Abstract:
The Fick case which was decided by the Constitutional Court on 27 June 2013 was
the first time since its inception that the Constitutional Court was confronted with
the status of a binding international decision within the domestic legal order. It
concerned a binding decision by the (now suspended) Southern African
Development Community (SADC) Tribunal against Zimbabwe, which was also
enforceable in South Africa. A key issue before the Court was whether or not the
South African statutory rules of civil procedure for the enforcement of foreign
judgments also covered judgments of international courts and tribunals (as
anticipated by Article 32(1) of the Protocol on the SADC Tribunal). As none of the
relevant statutory legislation was applicable in this instance, the common law
remained the only possible avenue through which the SADC Tribunal’s decision could
be enforced in South Africa. At the time of the decision, the common law on the enforcement of civil judgments
had developed only to a point where it provided for the execution of judgments
made by domestic courts of a foreign state (ie decisions of other national courts).
The Court was therefore confronted with whether or not an international decision in
the form of a cost order of the SADC Tribunal amounted to a “foreign judgment” as
recognized by the South African common law. The Court answered this question in the affirmative by relying on those clauses in the Constitution that committed South
Africa to the rule of law, as well as its obligations under international law, and to an
international-law friendly interpretation of domestic law.
Although the decision is to be welcomed and applied the law correctly to the facts of
the case, it does raise the issue of the wisdom of equating international judgments
with foreign judgments on a more general scale. This relates to the fact that it is
generally accepted in most jurisdictions that the recognition and enforcement of a
“foreign judgment” can be denied where it would result in a violation of domestic
public policy. The public policy exception does not, however, fit well in a regime
based on public international law, which does not permit States to use their
domestic law as an excuse for not implementing their international obligations.
