Richman v Ben-Tovim (11050/04) [2005] ZAWCHC 69; 2006 (2) SA 591 (C) (23 September 2005)

Richman v Ben-Tovim (11050/04) [2005] ZAWCHC 69; 2006 (2) SA 591 (C) (23 September 2005)

The court found that, under South African law, the mere temporary physical presence of the defendant in England at the time of service did not confer international jurisdiction or competence on the English court. The defendant was neither domiciled nor resident in England, and there was no clear evidence that he had submitted to the jurisdiction of the English court, either expressly or by conduct. The defendant did not enter an appearance to defend or file opposing papers in the English proceedings, nor did he challenge the jurisdiction of the English court or seek to set aside the judgment. Consequently, the plaintiff failed to discharge the onus of proving that the English court had...

Citation
[2005] ZAWCHC 69
Parties
Plaintiff: Michael Joseph Richman; Defendant: Gershon Ben-Tovim
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
23 September 2005
Case Number
11050/04
Procedural Posture
Provisional Sentence Application / First Instance
Outcome
Application for provisional sentence dismissed with costs.
Judges
D H Van Zyl
Legal Topics
Enforcement of Foreign Judgments, Provisional Sentence, International Jurisdiction, Public Policy Defence
Civil Procedure Commercial and Corporate Enforcement of Foreign Judgments Provisional Sentence International Jurisdiction Public Policy Defence

Case Brief

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Parties

Michael Joseph Richman

Plaintiff

Gershon Ben-Tovim

Defendant

Procedural Posture

Provisional Sentence Application / First Instance

Legal Issues

  1. 1 Whether the English court had international jurisdiction or competence over the defendant for purposes of enforcing the foreign judgment in South Africa.
  2. 2 Whether the recognition and enforcement of the English judgment would be contrary to public policy in South Africa.
  3. 3 Whether the Protection of Businesses Act 99 of 1978 precludes enforcement of the foreign judgment.

Ratio Decidendi

The court found that, under South African law, the mere temporary physical presence of the defendant in England at the time of service did not confer international jurisdiction or competence on the English court. The defendant was neither domiciled nor resident in England, and there was no clear evidence that he had submitted to the jurisdiction of the English court, either expressly or by conduct. The defendant did not enter an appearance to defend or file opposing papers in the English proceedings, nor did he challenge the jurisdiction of the English court or seek to set aside the judgment. Consequently, the plaintiff failed to discharge the onus of proving that the English court had...

Court Disposition

Application for provisional sentence dismissed with costs.

Orders

  • The application for provisional sentence is dismissed with costs.