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dc.contributor.authorde Wet,E
dc.date.accessioned2019-10-26T17:24:15Z
dc.date.available2019-10-26T17:24:15Z
dc.date.created2017-12-15 00:07
dc.date.issued2014-01-01
dc.identifieroai:scielo:S1727-37812014000100013
dc.identifierhttp://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100013
dc.identifier.urihttp://hdl.handle.net/20.500.12424/1882619
dc.description.abstractThe 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.
dc.format.mediumtext/html
dc.languageen
dc.language.isoeng
dc.publisherNorth-West University (Potchefstroom Campus)
dc.sourcePER: Potchefstroomse Elektroniese Regsblad v.17 n.1 2014
dc.subjectRelationship between international and domestic law
dc.subjectrecognition and enforcement of foreign judgments
dc.subjectinternational civil procedure
dc.subjectSADC Tribunal
dc.subjectrule of law
dc.titleThe case of Government of the Republic of Zimbabwe v Louis Karel Fick: a first step towards developing a doctrine on the status of international judgments within the domestic legal order
dc.typejournal article
ge.collectioncodeOAIDATA
ge.dataimportlabelOAI metadata object
ge.identifier.legacyglobethics:12226424
ge.identifier.permalinkhttps://www.globethics.net/gel/12226424
ge.lastmodificationdate2017-12-15 00:07
ge.lastmodificationuseradmin@pointsoftware.ch (import)
ge.submissions0
ge.oai.exportid148947
ge.oai.repositoryid98751
ge.oai.setnamePER: Potchefstroomse Elektroniese Regsblad
ge.oai.setspec1727-3781
ge.oai.streamid2
ge.setnameGlobeEthicsLib
ge.setspecglobeethicslib
ge.linkhttp://www.scielo.org.za/scielo.php?script=sci_arttext&pid=S1727-37812014000100013


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