Enforcement of Foreign Judgements in Zimbabwe
· Introduction
The enforcement of foreign judgments in Zimbabwe is governed principally by the Civil Matters (Mutual Assistance) Act [Chapter 8:02] ("the Act") and, where the statutory regime does not apply, by common law. A foreign judgment does not automatically acquire force in Zimbabwe merely because it is valid and enforceable in the country in which it was delivered. The judgment creditor must establish that Zimbabwean law recognises the judgment and, where execution is sought, take the necessary steps to have the judgment enforced in Zimbabwe.
· Statutory enforcement
The Act establishes a reciprocal enforcement mechanism for judgments from countries designated by the Minister under section 3(2). The designated countries include Australia, Bulgaria, Dominica, Germany, Ghana, Italy, Portugal, South Africa, Zambia and the Slovak Republic.[1] The statutory definition of "judgment" provided by the Act principally encompasses judgments or orders requiring payment of money.[2]
Under section 5, a judgment creditor may apply to the appropriate Zimbabwean court for registration within six years after the judgment, or, where appeal or review proceedings have been instituted, within six years after their determination.[3] Under Rule 77 of the High Court Rules, 2021, registration is sought by chamber application supported by the prescribed evidence.
The court will direct registration where it is satisfied that it is "just and convenient" for the judgment to be enforced in Zimbabwe. Section 6(2) requires refusal where, among other circumstances, the foreign court lacked jurisdiction, the judgment is not final and conclusive, it has been set aside or satisfied, enforcement would be contrary to Zimbabwean law or public policy, the judgment concerns foreign taxes or penalties, it was procured by fraud, or the judgment debtor did not receive reasonable notice and an opportunity to defend.[4]
Once registered, the judgment has, subject to the Act, the same effect for purposes of execution and related proceedings as a judgment of the registering court. Execution may not proceed until the period within which the judgment debtor may apply to set aside registration has expired.
· Common-law enforcement
Where the foreign judgment does not fall within the statutory reciprocal regime, recognition and enforcement may proceed under the common law. The High Court confirmed that a foreign judgment may constitute a cause of action in Zimbabwe where the requirements of Zimbabwean private international law are satisfied.[5]
The common-law inquiry is directed primarily at the recognition of the foreign judgment, rather than a reconsideration of the merits. The Zimbabwean court does not ordinarily sit as an appellate court over the foreign tribunal.
Below are the factors the Court will take into consideration to determine whether a foreign judgment should be recognised and enforced in Zimbabwe:
International jurisdiction
The foreign court must have possessed international jurisdiction recognised by Zimbabwean law. This aspect assesses if the judgment debtor to the foreign judgment was physically present in the state to which the court belongs or is domiciled or resident within that State or has submitted to the jurisdiction of that court.
Finality and conclusiveness
The judgment must be final and conclusive in the relevant sense. The question is whether the judgment has acquired sufficient binding effect under the law of the country in which it was delivered.
Fraud and procedural fairness
A judgment obtained by fraud will not be enforced. Similarly, the proceedings must satisfy fundamental standards of natural justice, particularly adequate notice and a reasonable opportunity to be heard. As mentioned before, the Court is not ordinarily concerned with whether the foreign court reached the correct decision on the merits.
Penal and revenue laws
Zimbabwean courts do not ordinarily enforce the penal or revenue laws of a foreign state. Section 6(2)(h) of the Act accordingly excludes judgments relating to foreign taxes, duties, rates, fines and penalties.
Public policy
Enforcement may also be refused where recognition would be contrary to Zimbabwean public policy. This is a narrow safeguard against judgments fundamentally incompatible with the values of the forum, rather than an invitation to reconsider every difference between Zimbabwean and foreign law.
Recognition and execution
An important practical distinction must be drawn between recognition or registration and execution. A foreign judgment should not ordinarily be treated as an immediately executable Zimbabwean judgment. The High Court previously held that consequential relief could not properly be founded upon an unregistered foreign judgment where registration was required.[6]
The appropriate sequence is therefore to establish the judgment's enforceability in Zimbabwe, obtain registration or recognition as required, and thereafter invoke the domestic machinery of execution.
· Conclusion
The Zimbabwean law of foreign judgment enforcement balances international comity with the protection of the domestic legal order. The statutory regime under the Civil Matters (Mutual Assistance) Act provides a structured mechanism for judgments from designated countries, while the common law supplies the principal route for judgments falling outside that regime.
The essential requirements are jurisdiction, finality, absence of fraud, procedural fairness, compatibility with public policy and the exclusion of foreign penal and revenue claims.
Therefore, the creditor should establish
- the judgment's authenticity, finality and enforceability;
- the foreign court's jurisdiction;
- the creditor's right to enforce; and
- where relevant, proper service.
Furthermore, the identification of Zimbabwean assets should also occur at an early stage, particularly because section 6(3) of the Act permits ancillary orders concerning assets.
[1] Civil Matters (Mutual Assistance) (Designated Countries) Order, 1998, SI 65/98
[2] Section 2, Civil Matters (Mutual Assistance) Act [Chapter 8:02]
[3] Section 5, Civil Matters (Mutual Assistance) Act [Chapter 8:02]
[4] Section 1 & 2, Civil Matters (Mutual Assistance) Act [Chapter 8:02], s 2
[5] Tiiso Holdings (Pvt) Ltd v Zimbabwe Iron & Steel Company Ltd HH 95-10; Cook v Abrahams & 5 Ors HH 263-21 and Makoni v Makoni HH 222-23.
[6] Cook v Abrahams & 5 Ors HH 263-21