Mr Frans Rootman sought an order against the President and the Minister of Justice compelling them to take steps to assist him in enforcing a money judgment against the Government of the Democratic Republic of Congo (the DRC). The Pretoria High Court dismissed Rootman’s application. The Supreme Court of Appeal today upheld the judgment of that court, dismissing the appeal.
Rootman had entered into a contract with the DRC, undertaking to investigate the theft of cobalt from the country, and to trace and recover it for a commission. Although he performed the work and recovered substantial quantities of cobalt for the DRC he claimed that he was not ever paid the full amount owing to him. He sued the DRC in the Pretoria High Court, and obtained a judgment by default. It is this judgment, for an amount now in excess of $15 000 000, that he wishes to have enforced. The DRC has refused to make payment to Rootman despite the court order.
Rootman has attempted to have the court order executed both in South Africa and abroad. He has recovered only a small percentage of what is owed, mainly through the sale of an aircraft that belonged to the DRC. He sought an order that the State take steps to assist him in ensuring compliance with the court order on the basis that the DRC’s evasion of its commercial debt undermines the rule of law, and the dignity and effectiveness of the courts, in such a manner as to oblige the State to intercede on his behalf.
The Supreme Court of Appeal held that the State’s duty to ordinary creditors to ensure the effectiveness of courts was discharged by putting in place legislation, rules of court and enforcement mechanisms. It had no greater duty to Rootman simply because the debtor was a foreign state. The court held also that it should not order the State to request (through diplomatic channels) a foreign government to comply with a court order.