The process of enforcing foreign judgements in Zimbabwe

INTRODUCTION

As the world becomes more of a global village coupled with the harsh economic conditions that have befallen this country since the turn of the Century, many Zimbabweans have resorted to migrate elsewhere in search of ‘’greener pastures’’. This has resulted in People Moving to countries like the United Kingdom, the United States of America, Australia, Canada and our neighbouring South Africa. Many of these Zimbabweans since moving have acquired citizenship or permanent residence in those respective countries and some have even gone before the courts and received judgments particularly pertaining to matrimonial issues. The problem In this brief article I seek to address the registration and enforcement of a Foreign Judgment
in the courts of the Republic of Zimbabwe.

THE LAW

1. From the onset it must be stated that a foreign judgment constitutes a separate cause of action in Zimbabwe. In the case of Wheeler v Egglestone HH 99-16 the court stated that: “…a foreign judgment cannot be enforced without invoking internal processes. An individual or entity cannot come into the country brandishing a foreign judgment and run the breadth and width of the country seeking to enforce or execute the judgment on his own.”
2. The issue of registration of a foreign judgment is regulated by the Civil Matters (Mutual Assistance) Act [Chapter 8:02] Accordingly in 1995, the Civil Matters (Mutual Assistance) Act [Chapter 8:02] came into force in Zimbabwe. According to the long title, the Act was enacted inter alia, “to provide for the enforcement in Zimbabwe of civil judgments given in foreign countries and territories”. However, such foreign judgments can only be enforced after the process of ‘registration’ as provided for in terms of the Act. Further, there is a peremptory requirement that such judgments should emanate from one of the designated countries as specified in the Civil Matters (Mutual Assistance) (Designated Countries) Order, Regulations of 1998 published in Statutory Instrument Number 9 of 1999. The countries are Australia, Bulgaria, Germany, Portugal, South Africa, Italy, Zambia and Slovak Republic.
3. The process of registration shall be set out below.
4. In terms of Section 5 of the Civil Matters (Mutual Assistance)
   Act application for registration can be done as provided below:
5. Application for registration of foreign judgment (1) Subject to subsection (2), a judgment creditor under a judgment given in a designated country may apply to an appropriate court for the registration of that judgment in the appropriate court. (2) An application under subsection (1) for the registration of a judgment—
   • may be made at any time within six years after—
     • the date of the judgment; or
     • the determination of any proceedings by way of appeal or review, where such proceedings have been instituted in respect of the judgment; and
   • shall be made in the form and manner prescribed in rules of court applicable to the appropriate court.
6. After the application for registration has been completed the Court can either grant or deny the application. Section 6 which provides for this is set out below:

6 Grant or refusal of application

1. Subject to this section, in an application under section five, an appropriate court shall direct the registration of the judgment concerned if the court is satisfied that it is just and convenient for the judgment to be enforced in Zimbabwe.
2. An appropriate court shall not direct the registration of a judgment if the court is satisfied that—
   • the court or tribunal that gave the judgment had no jurisdiction to do so; or
   • the judgment is not a final and conclusive judgment of the court or tribunal concerned; or
   • the judgment could not be enforced wholly or partly by execution in the designated country in which it was given; or
   • the judgment has been set aside by a court of competent jurisdiction; or
   • the judgment has been wholly satisfied; or
   • the judgment has become prescribed under the law of the designated country in which it was given; or
   • enforcement of the judgment would be contrary to any law or to public policy in Zimbabwe; or
   • the judgment is for the payment of—
     • any tax, duty, rate or similar charge; or
     • a fine or other penalty; or
     • maintenance for any person; or
   • the judgment was obtained by fraud; or
   • the applicant is not a judgment creditor vested with a right to seek enforcement of the judgment; or
   • the judgment debtor, as defendant in the proceedings that gave rise to the judgment, was not able to appear and defend the proceedings because he did not receive reasonable notice of them.

CONCLUSION

It is evident from the provisions above that a foreign judgment can only be enforced after the process of registration. This procedure is very important to all those seeking that the judgments they receive become executable in Zimbabwe. However it should also be noted that this is only applicable to those so called Designated countries. Unfortunately at present this has the effect of limiting Diasporans who are in countries such as Canada, Britain and other countries which do not qualify as Designated Countries. This is definitely an area which the Legislature must consider looking into as time moves on. Doing so would definitely not be unreasonable at all as we have a considerable number of Zimbabweans living outside its borders in countries far and wide.