This Country Answer reflects the state of the law as of 18 July 2008. Please refer to the explanations in the chapter entitled Disclaimer and Preliminary Note.

A. The Contracting State and the New York Convention

1. Name of Contracting State (also specify jurisdiction(s), if relevant)

Republic of South Africa.

2. Date of entry into force of the New York Convention

1 August 1976.

(Source: Hansard, Debates of the House of Assembly, 18 Mar. 1977, Col. 3874, Government Gazette 5160 GN 1028, 18 June 1976, Government Gazette 5208 GN 1189, 9 July 1976.)

3. Has any reservation been made under Art. I(3) of the New York Convention regarding:

(a) reciprocity

No.

(b) commercial relationships

No.

4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?

This has not been the subject of legislative or judicial pronouncement. However, awards in international arbitrations held in South Africa will presumably not be regarded as domestic awards in South Africa.

There is no definition of 'international' arbitration in any code or statute in South African law. An arbitration is likely to be regarded as 'international' if the parties at the time of the conclusion of their agreement had their places of business or residence in different States.

B. National sources of law

5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?

(i) Recognition and Enforcement of Foreign Arbitral Awards Act, 40 of 1977; (ii) Protection of Businesses Act, 99 of 1978.

C. Limitation periods (time limits)

6.

(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?

Yes.

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

There are no legislative or judicial pronouncements directly on point. It is therefore unclear whether the applicable limitation (prescription) period would be 30 years, which is the statutory limitation period applicable in respect of the enforcement of a South African court judgement, or 3 years, which is the statutory period applicable in respect of the enforcement of a debt. It is noted that a domestic arbitral award has been held to be enforceable until the lapse of 30 years from its publication, whereas an application to enforce a foreign court judgment has been held to be barred by prescription if not brought within 3 years.

Until a court pronounces authoritatively on the matter, it is recommended that any application for recognition and enforcement of a foreign award be initiated within 3 years.

The limitation period would commence to run from the date of publication of the award.

(Sources: Prescription Act 68 of 1969; Blaas v. Athanassiou, 1991(1) SA 723 (W) at 725H-I; Society of Lloyds v. Price; Society of Lloyds v. Lee, 2005(3) SA 549 (T).)

D. National courts and court proceedings

7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?

(i) The High Courts (previously called the Supreme Court of South Africa).

(Source: Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, s. 1; Constitution of the Republic of South Africa, Act 108 of 1996, ss. 166(c) and 169.)

(ii) The Minister of Trade and Industry (formerly known as the Minister of Economic Affairs), in respect of the enforcement of foreign arbitral awards mentioned in s. 1 of the Protection of Businesses Act, 99 of 1978.

8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?

A court may decline jurisdiction if its order would be a mere brutum fulmen, i.e. of no practical effect, which may well be the case if the respondent has no connection with the jurisdiction and no assets within the jurisdiction.

9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?

Inter partes proceedings.

10.

(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?

Yes, if final in effect.

(b) How many levels of appeal or recourse are available against this decision?

In general, two.

With the leave of the High Court, there may be an appeal either to the Full Bench of the Provincial Division or directly to the Supreme Court of Appeal.

In cases involving a constitutional issue, there may be a further appeal, with leave, from the Supreme Court of Appeal to the Constitutional Court. Where leave to appeal is refused, the President of the Supreme Court of Appeal or the Chief Justice of the Constitutional Court (as the case may be) can be petitioned to allow the appeal.

11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?

In respect of awards not affected by s. 1 of the Protection of Businesses Act, 99 of 1978, a judgment recognizing an award may be executed against assets immediately after the court order recognizing the award is served on the debtor. However, if leave to appeal is granted, then execution is automatically stayed pending the disposition of the appeal.

In cases affected by s. 1 of the Protection of Businesses Act, 99 of 1978, the permission of the Minister of Trade and Industry must also be obtained before the award can be enforced and execution obtained against assets.

E. Evidence required

12.

(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?

The applicant must supply the court with: (i) a sworn affidavit based on personal knowledge stating the facts on which the application is based; (ii) the original or a certified copy of the foreign arbitral award; (iii) the original or a certified copy of the arbitration agreement upon the basis of which the award was made.

(Source: Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, s. 3(a).)

In addition:

(iv) both the award and the agreement (or certified copies thereof) must be authenticated in accordance with Rule 63 of the Supreme Court Rules.

(Source: Supreme Court Rules promulgated under the Supreme Court Act, 59 of 1959, Rule 63; note the change in nomenclature, the Supreme Court now being the High Courts):

(v) where an award is expressed in a foreign currency it must be converted into rands at the exchange rate prevailing at the date of the award.

(Source: Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, s. 2(2).)

(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?

The entire award is required. Only the arbitration clause (i.e. arbitration agreement) is required under s. 3(a)(i) of the Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, but the court may require sight of the entire contract in which the arbitration agreement is contained.

(c) Are originals or duly certified copies required?

Either the original or a duly certified copy is required.

(Source: Recognition and Enforcement of Foreign Arbitral Law Act, 40 of 1977, s. 3(a))

(d) How many originals or duly certified copies are required?

Two originals or duly certified copies are required, one for the court and one for service on the respondent.

(e) Does the authority or court keep the originals that are filed?

Yes-the original or certified copy submitted to the court is filed with the Registrar of the High Court. The original cannot be retrieved after the conclusion of the case unless the court so orders.

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes, in the event that the document is in a language other than an official language of South Africa.

(Source: Supreme Court Rule 60.)

(b) If yes, into what language?

The document must be accompanied by a translation into English or one of the other ten official languages of South Africa.

(Source: Supreme Court Rule 60.)

(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?

Yes, translations must be certified by a sworn translator.

(Source: Supreme Court Rule 60.)

(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?

An applicant tendering less than a full translation of a document would have to satisfy the court in the affidavit that any such limitation is justified. A court may, in its discretion, elect to receive less than a full translation if appropriate.

F. Stay of enforcement

14.

(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?

Yes.

(Source: Recognition and Enforcement of Foreign Arbitral law Act, 40 of 1977, s. 4(2).)

(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?

No other statutory grounds permit such a stay. There has been no judicial pronouncement on whether a stay would be granted on the basis of forum non conveniens.

(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?

No. However, the court has the discretion to order the provision of security if appropriate.

G. Confidentiality

15.

(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?

Yes. A motion can be brought seeking an order of the court to preserve the confidentiality of documents. Such an order would constitute a departure from general practice and would require good cause to be shown.

(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?

No. In general, hearings are open to the public. Again, in an exceptional case, application may be made for a hearing in camera. The matter lies within the discretion of the court.

(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?

Yes. However, again in exceptional circumstances (such as exposure of business secrets or State secrets), the court may limit or prohibit publication in the exercise of its discretion.

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

Only final awards are subject to recognition and enforcement. Partial awards, as long as they are final, may be recognized and enforced.

17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?

A party can obtain recognition and enforcement of the following types of non-monetary relief in foreign awards: (i) an order for recovery or delivery of the possession of land; (ii) an order for recovery or delivery of personal property; and (iii) an order requiring a person to do, or to abstain from doing, an act.

18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?

(i) In principle, it is possible for an applicant to obtain recognition and enforcement of only part of the relief granted in a foreign award; for example, where a part of the award has already been satisfied or the applicant abandons a portion of the award.

(ii) If part of the award is irregular or invalid and part is valid, and if the two parts are severable, there is no reason in principle why the enforcement of only the valid part of the award could not be ordered.

19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?

South African legislation does not specify whether a foreign award which has been set aside by a competent authority may, nonetheless, be recognized and enforced, and there is no court judgment addressing the issue. To the extent that the issue of enforceability turns on a question of public policy, on which the competent authority may differ from the court which is requested to recognize and enforce the foreign award, a South African court could nonetheless decide to recognize and enforce the award.

20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?

No foreign arbitral award is capable of recognition or enforcement in South Africa if connected with any liability arising from any bodily injury resulting directly or indirectly from the consumption or use of or exposure to any natural resource of the Republic or of any product contained or processed from any natural resource of the Republic, unless the same liability would have arisen under the law of the Republic as it existed at the time of the occurrence of the event which gave rise to the liability.

(Source: Protection of Businesses Act, 99 of 1978, s. 1D.)

Country Rapporteur: Michael Kuper.