From Symbolism to Substance: Comity and Judicial Reform in South Africa’s Foreign Judgments Regime

Despite its strategic role in African and Global South commercial networks, South Africa’s economy lags behind among its BRICS partners and most African peers. Statistics reveal that 44 per cent of foreign judgments are denied recognition in South Africa, primarily due to the rigorous requirements at the enforcement stage, resulting in expensive re-litigation or business discouragement. This article explores how the principle of comity, often used rhetorically by courts, could be transformed into a substantive tool to modernize South African common law. To address the misalignment between domestic rules and global trade, the paper proposes tailoring Canada’s “real and substantial connection” test to suit South Africa’s needs. Finally, to mitigate the risks of enforcing foreign default judgments with tenuous links to the forum, it proposes strengthening the natural justice defence by requiring sufficient notice and evidentiary grounding, as other common law systems have done.