Suing someone in South Africa?

[2Btoo]

I have a contact in South Africa with whom I occasionally do business.

As evernts have turned out, they now owe me money. My suspicion is that they will pay and this won't ever happen, but what would happen if they weren't to be honourable and pay that which is owed? Can I sue someone in South Africa? Some more details;

- The amount owed is from business transcations relating to property
- The amount is about £3500-4000
- I have fully signed contracts and can prove the debt with no difficulty

Were they UK-resident then I know I would have easy recourse via the Small Claims Court. I do have a residential address for them in SA. How would I start legal action against them? And, perhaps more importantly, if the claim were successful and they were to choose not to pay that either then what would be my options for enforcing the judgement? They have property in the UK (from which the debt has arisen) and the obvious option would be a charge against that, but I have no idea how to go about this.

If anyone has any words of wisdom I'd be happy to hear that. ('Negotiate' is a very wise word, I am aware). As I said, I don't think this is going to blow up into an issue but I'm keen to know what my options are.


Thanks.

[TooMany2cvs]

ZA small claims court is R15k max - or less than £900.
http://www.justice.gov.za/scc/scc.htm

So you'd need to get a lawyer over there involved, and it'd be a bigger case in a bigger court.

If it was a South African transaction, then I doubt you'd get a UK court to take it on.

[2Btoo]

TM2CVs,

Thanks. I should have stated it's a UK contract under UK law, and relates to UK-based property. Payment has been in STLG and the debt is owed in the same currency.

Would I start court proceedings in the UK (my country of residence) or SA? I had assumed the UK.

Helpful link by the way - thanks.

[TooMany2cvs]

2Btoo said:

I should have stated it's a UK contract under UK law, and relates to UK-based property. Payment has been in STLG and the debt is owed in the same currency.

UK court it is, then.

[Red Devil]

2Btoo said:

I should have stated it's a UK contract under UK law, and relates to UK-based property. Payment has been in STLG and the debt is owed in the same currency.

Do your T&Cs specifically say so? For example:

These Terms and Conditions and any terms and conditions relating to products or services described in this contract shall be governed by and construed in accordance with the laws of England and Wales. Disputes arising in relation to the same shall, unless otherwise expressly agreed, be subject to the exclusive jurisdiction of the courts of England and Wales.

Even if they do, you still have the practical issue of how to enforce any judgment in your favour should the debtor still fail to pay.

[2Btoo]

RedDevil,

Thanks. No it doesn't (I've just checked to make sure). Would this be a problem? To clarify;

- Contract is between me in UK (UK address) and them in SA (SA address)
- Contract relates to a named UK property, whose address is given
- Reference is made to UK property law
- There is no statement such as you outlined saying it is to be judged in UK courts

The question of 'satisfaction' (as I believe the legal term is) is the tricky one. The one that immediately springs to mind is to place a charge on their UK property but I have no idea how this could be done or even if it is a viable one.

Thanks again.

[Red Devil]

2Btoo said:

RedDevil,

Thanks. No it doesn't (I've just checked to make sure). Would this be a problem? To clarify;

- Contract is between me in UK (UK address) and them in SA (SA address)
- Contract relates to a named UK property, whose address is given
- Reference is made to UK property law
- There is no statement such as you outlined saying it is to be judged in UK courts

The question of 'satisfaction' (as I believe the legal term is) is the tricky one. The one that immediately springs to mind is to place a charge on their UK property but I have no idea how this could be done or even if it is a viable one.

Thanks again.

Without such a clause in your T&Cs it means a reluctant debtor could well try to dispute jurisdiction. Whether he has any prospect of succeeding remains to be seen but what might it cost you to win that battle? You might find this helpful (especially the bit at the end) - http://www.out-law.com/topics/dispute-resolution-a... - unfortunately South Africa is not on list.

However, if the debtor has assets in the UK which can be levied against or charged that's a positive sign. That said, property (as in a house/business premises) has a catch. If there is a mortgage the consent of the lender will be needed which it might decline to give.

IANAL so were I in your shoes I would seek proper legal advice from a suitably qualified solicitor. You need one who understands extra-jurisdictional issues. No idea whether there is anyone on here who can point you in that direction.

[2Btoo]

Red Devil,

Thanks - that's very helpful. My suspicion is that he wouldn't dispute jurisdiction but, as you said, that could be an expensive one to prove. And the link was very helpful too.

As I said I doubt whether push will come to shove with this one and I'm sounding out a 'Worst Case Scenario'. I'm not a legal type at all and even a statement such as "You need <a solicitor> who understands extra-jurisdictional issues" is helpful. Yes, he does indeed have UK property assets but I didn't know that a charge could only be put on property with the permission of a mortgage company (and that seems like an odd rule, but that's a different discussion). Maybe I'll drop my usual legal guy a line and see what advice he has - he is consistently excellent and I should probably have started with him than by posting on here!

Of course the question of whether it is worth it for £3k's worth of money is a point that only I can address, before anyone mentions it.


Thanks again.

[kowalski655]

I didn't think a charging order needed the mortgage company's consent,it just comes as a second charge,after theirs, although that may have changed since I did them.
If reference is made to UK property law, even if not the exact wording quoted above, that should hopefully clarify it

[Red Devil]

Yes it will rank below that of the mortgage lender but that wasn't what I was getting at. See post #6 here. OP, that link appears to be quite similar to the situation in your case.

[kowalski655]

That seems to be for voluntary charges ion a property, post #9 mentions charging orders,from a court,which this would be, and 1st mortgagees can't object to a sale orderedxby the court when enforcing the charging order.
Of course its not worth enforcing the order unless there is sufficient equity in a property

[2Btoo]

Follow-Up: The parties in question have paid the money owed (although not without a page-long grumble by eMail), and I'm happy with the outcome.

Thanks again for your help.

[BlueHave]

Or you could hire some sort of enforcer. I read somewhere thats white popular in South Africa.

[Roy Lime]

They'll probably claim diplomatic immunity.

[BertBert]

That's a very good result. I'd say the chances of otherwise suing an SA con would be very low indeed with a #lot# of effort.

2Btoo said:

Follow-Up: The parties in question have paid the money owed (although not without a page-long grumble by eMail), and I'm happy with the outcome.

Thanks again for your help.