The role of public policy in the nonenforcement of foreign judgments arising from gambling debts in South African courts: A comparative overview

Abstract

The aim of the article is to ascertain whether a foreign judgment, arising from a gambling debt in a foreign land-based casino, would be enforceable in South African courts in light of the partial legalisation of gambling within South Africa. The provisions of the Enforcement of Foreign Civil Judgments Act 32/1988 as well as the common law are discussed with specific reference to the possible “public policy”-exception preventing the enforcement of such foreign judgments. The reported judgment of C a s ino Hotel Polana Sarl v Tintinger 2003 JDR 0792 (T) is examined and evaluated in light of the National Gambling Act 7/2004. The existing foreign precedents in Malaysia, Switzerland, two states in the USA namely, California and New York, and Canada are referred to, to illustrate the divergent public policies in this regard as well as the varied interpretation of the concept of international comity. The outcome reached in the Malaysian courts is similar to South Africa and also based on reasons of public policy, although religion seems to have played a more important role in the Malaysian decision. The decisions in Switzerland, California, New York and Canada, however, came to a different conclusion based on a changed public policy and for reasons of comity, although it is concluded that it is uncertain whether other, more conservative states in the USA, will follow suit.