A brief discussion on international civil judicial assistance in South Africa

International judicial assistance refers to the court or other competent authority of one country, based on the request of the court or other competent authority of another country or the relevant parties, Act for or assist in certain judicial acts related to litigation. ①Judicial assistance involves both civil litigation and criminal litigation. In terms of criminal judicial assistance, the "Extradition Treaty between the People's Republic of China and the Republic of South Africa" ??signed between our country and South Africa has been approved by the Standing Committee of the National People's Congress. ② In terms of international civil judicial assistance, China and South Africa have not signed any treaty or agreement, so matters related to civil judicial assistance between the two countries can only be carried out in accordance with the domestic laws of each country or the international treaties they have joined or the principle of reciprocity. South Africa has become China's largest trading country in Africa. More and more Chinese companies or individuals are doing business or investing in South Africa. In recent years, the frequent occurrence of cases involving Chinese companies or individuals in South Africa has increasingly highlighted the need to understand South Africa's international civil judicial assistance. urgency and importance. ③International civil judicial assistance generally includes the authentication of documents, extraterritorial service, extraterritorial investigation and evidence collection, and the recognition and enforcement of foreign civil judgments and arbitral awards. This article will discuss South Africa’s relevant regulations in these aspects.

1. Authentication of documents

Authentication refers to the confirmation by a country’s diplomatic and consular agencies and their authorized agencies on notarized documents or other official documents that the notary agencies, competent authorities, and judicial agencies Or the last signature or seal of the certification authority is authentic. According to common international practice, all documents that need to be used outside the territory should generally be authenticated. The authentication procedure is to first authenticate the signature or seal of the notary authority or other agency on the document by the Ministry of Foreign Affairs of the country that issued the document or an agency authorized by the Ministry of Foreign Affairs, and then the embassy or consulate of the country using the document in that country authenticates the signature or seal of the country that issued the document or the Ministry of Foreign Affairs. The signature or seal of the Ministry’s authorized authority shall be authenticated. The purpose of authentication is to confirm the authenticity of a document issued by a country, so that the document will be recognized by the country using the document, and will not affect the use of the document abroad due to doubts about whether the signature or seal on the document is authentic. Therefore, the authentication system plays an important role in international document exchange and is an indispensable link in international document exchange. ④For domestic documents to be used outside the territory, they must be authenticated by the embassy or consulate of the country where the documents are used, but authentication by the relevant agencies of the country is not necessary. Documents attesting to documents made outside South Africa and intended for use in South Africa are usually signed directly by a South African consular or diplomatic officer stationed in that foreign country or by a notary public. For a notary's signature, the notary's signature must also be authenticated by a South African consulate, except in Botswana, Lesotho, Swaziland, Zimbabwe, the United Kingdom and Northern Ireland.

Today, with increasingly frequent international exchanges, a large number of documents need to be used outside the territory. Authentication will undoubtedly increase the workload of diplomatic and consular agencies and increase the burden on document users. Therefore, many countries believe that relevant certification procedures should be simplified or exempted from certification. To this end, the Hague International Judicial Conference formulated the "Convention Abolishing the Requirement of Legalization for Foreign Public Documents" in 1961. This is the Hague Convention on Private International Law that currently has the largest number of participating countries and the most extensive influence. It has a great impact on the cancellation of certification. ①South Africa joined the Convention on April 30, 1995. According to the provisions of the Convention, the scope of use of the Convention is "official documents that have been made in the territory of one contracting state and need to be used in the territory of another contracting state." According to Article 1 of the Convention, official documents include the following types: 1) documents issued by agencies or officials related to the courts or tribunals of a country, including documents issued by prosecutors, court clerks or judicial enforcement officers; 2) administrative documents; 3 ) notarized documents; 4) official certificates attached to documents signed in a personal capacity, such as official certificates documenting the registration of a document or the fact that it existed on a certain date and official and notarized certificates of signatures. However, the Convention does not apply to the following two types of documents: 1) documents issued by diplomatic and consular agencies; 2) administrative documents that directly deal with business transactions or customs matters. Article 2 of the Convention stipulates: “Each Contracting State shall be exempted from the legalization procedures for documents that are required to be produced in its own territory due to the application of this Convention.” That is to say, the diplomatic and consular agencies of the country where the document is used no longer need to authenticate the documents of the country that issued the document. However, this This does not mean that all certification procedures for document authentication can be dispensed with. In order to still ensure the authenticity of documents after cancellation of authentication, the Convention stipulates an additional certificate system, that is, the issuing country of the document designates one or several competent authorities in accordance with the provisions of the Convention, and attaches it to the document sent to the foreign country in the format prescribed by the Convention. A certificate certifying that the signature seal is authentic, that the signer was suitably qualified at the time of signing, etc. After South Africa acceded to the Convention, it canceled the requirement for authentication of foreign official documents. As long as the foreign-related documents comply with the provisions of the Convention on "public documents" and the relevant agency of the country that issued the document has attached a certificate to the document, the document does not need to be authenticated. Once certified by the South African embassy or consulate, it can be used in South Africa.

South Africa's Law No. 2 of 1995 has extensive provisions on the institutions that have the power to affix certificates to documents.

Under this provision, the following authorities have the power to attach certificates to documents made in South Africa: 1) any District Judge or Additional District Judge; 2) any registrar or assistant registrar of the High Court of South Africa; 3) designated by the Minister of Justice any person; and 3) any person designated by the Minister for Foreign Affairs.

For documents that do not fall within the scope of "public documents" listed in the Hague Authentication Convention, including documents from non-member countries of the Convention, if they are to be used in relevant proceedings in South Africa, they must be in accordance with the South African Article 63 of the Uniform Rules of Court provides for authentication, that is, it will still be authenticated by the South African embassy or consulate.

2. Overseas service

Overseas service means that a country’s judicial authorities deliver extra-judicial documents and judicial documents to residents in accordance with international treaties or national laws or in accordance with the principle of reciprocity. The conduct of litigants or other litigation participants abroad. As far as the entire international private law assistance is concerned, service is the most frequent aspect of cooperation in practice. ② Service is of great significance in the field of judicial assistance. It has an important impact on the court's determination of jurisdiction, prevention of parallel litigation, and recognition and enforcement of foreign judgments.

South Africa's "Reciprocity of Civil Service of Process Act" provides for reciprocal civil service of process in South Africa and designated countries. The Act not only provides for the service of documents from designated countries in South Africa, but also provides for the service of documents made in South Africa within the designated country. However, since the only country designated in this law is Namibia, the role of this law in serving documents is extremely limited. In addition, since South Africa has not yet joined the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial which was formulated by the Hague Conference on Private International Law in 1965 Matters), therefore the provisions of South Africa’s Uniform Rules of Court shall apply to the service of such documents. Article 3 of Rule 4 stipulates: “Service abroad of any document before a South African court shall be effected by:

a) Any person appointed by:

1) South Africa The head of a diplomatic corps or consular corps, a person in the administrative or professional department of a public institution serving in a South African diplomatic or consular corps or a foreign trade agency;

2) Any representative in that foreign country A foreign diplomatic or consular official in South Africa and the country conducting service of documents;

3) Any diplomatic or consular official of that foreign country stationed in South Africa and the country; or 4) Any act or On behalf of the head of the judicial administration of that foreign country, a person who is authorized to make such service under the laws of that foreign country; or b) by any person mentioned in clauses 1) and 2) of a), if he makes such service under the laws of that foreign country. or if the foreign country has no law prohibiting such service and the institutions of that country have not objected to such service "

Rule 4, Article 4 provides that in Australia, Botswana, Finland, France, Hong Kong, In countries such as Lesotho, Malawi, New Zealand, Spain, Swaziland, the United Kingdom and Zimbabwe, such service can also be made by "lawyers, notaries or other practitioners authorized by a country or the relevant state to serve court documents" . However, in order to bring an action in South Africa against a party who is not in South Africa, there are a number of obstacles that must be overcome: First, Rule 5 clearly states that, except in the countries specified in the Reciprocity of Civil Service Process Act, unless the Proceedings may not be brought in South Africa by service on parties outside South Africa with the leave of the South African courts. As of now, the only country designated by the Reciprocity of Civil Service Process Act is Namibia. In order to apply for permission from the South African courts to serve parties outside South Africa, the applicant must convince the South African courts that he has a substantial chance of success in the final proceedings; secondly, in order to make such an application, it is necessary to arrest the defendant or to seize the defendant’s property in South Africa to obtain jurisdiction. Property can be movable or immovable, or even intellectual property. ① Section 33, paragraph 2, of the Supreme Court Act of South Africa stipulates the service of foreign civil documents in South Africa. To serve foreign civil documents in South Africa, the relevant foreign institution must first submit a request to the South African Ministry of Justice. The South African Minister of Justice will then forward the request to the registrar of the South African court, and then the registrar will arrange for an executive to serve it in accordance with the court rules. . For foreign parties who do not want to serve the parties in South Africa through diplomatic channels, they can serve documents on the South African parties by hiring a private attorney in South Africa. In most Commonwealth countries, service by proxy does not violate local law, and their own governments do not consider this method to infringe on their sovereignty. ②

3. Overseas evidence collection

The extraterritorial evidence collection system for civil and commercial cases is one of the important contents of international civil judicial assistance. It refers to the relevant institutions or personnel of the country that accepts the case. The act of conducting relevant international civil litigation proceedings and extracting litigation evidence outside the territory of the court country. Investigation and evidence collection are a manifestation of the exercise of national judicial sovereignty. According to the common practice of various countries, other countries cannot collect evidence within the territory of the country without the express or implicit consent of the country concerned. Otherwise, it will violate the country's sovereignty. .

③South Africa’s Foreign Court Evidence Act stipulates that if relevant foreign institutions or personnel want to directly collect evidence in South Africa, they must obtain an order issued by a judge of the South African High Court before questioning witnesses. South Africa's "Supreme Court Act" stipulates that relevant foreign institutions or personnel can also conduct indirect evidence collection in South Africa through diplomatic channels. According to Section 33, paragraph 1, of the Act, after receiving a request from a relevant foreign agency for investigation and evidence collection, the Minister of Justice of South Africa shall forward the request to the registration officer, who will then forward it to the court judge for granting the request. The book is effective. The purpose of the request stipulated in this article is to extend the hearing in the foreign court to the hearing in South Africa by the commissioner appointed by the foreign country, and the evidence obtained by the commissioner becomes part of the evidence in the foreign court. ④On July 8, 1997, South Africa joined the Hague Convention on the Taking of Evidence in Civil or Commercial Matters formulated by the Hague Conference on Private International Law in 1970. The Convention was adopted in 1997 It came into effect for South Africa on September 6, 2011. South Africa conducted investigations and collected evidence in relevant contracting countries in accordance with the provisions of the Convention. In terms of foreign investigation and evidence collection, in addition to the Convention, South Africa's domestic law also has relevant provisions. According to Rule 38 Rule 38 of the Uniform Rules of Court in South Africa, the court may order "where convenient or where the ends of justice so require", usually when a witness is unwilling or unable to come to South Africa to give evidence. Appoint a special commissioner to take evidence from witnesses. Rule 38, Rule 4, stipulates that if the commissioner is collecting evidence in South Africa, he may summon witnesses by subpoena. South Africa's Foreign Court Evidence Act provides for the cross-border summons of witnesses from certain countries in South Africa. Currently, this reciprocal arrangement only exists between certain southern African countries: Botswana, Lesotho, Malawi, Namibia, South Africa, Swaziland and Zimbabwe.

4. Recognition and enforcement of foreign judgments and arbitral awards by South African courts

1) Recognition and enforcement of foreign judgments by South African courts

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