THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 774/2022

In the matter between:
JAMES R LINDSEY
FIRST APPELLANT
THE LINDSEY FAMILY TRUST
SECOND APPELLANT
WILLIAM BUCK JOHNS
THIRD APPELLANT
MARC VAN ANTRO
FOURTH APPELLANT
WYMONT SERVICES LIMITED
FIFTH APPELLANT
All acting derivatively and on behalf of
AFRICAN WIRELESS INCORPORATED
SIXTH APPELLANT
and
ALIEU BADARA MOHAMED CONTEH
(substituted by BRIGETTE VAN GEESBERGEN CONTEH
in her capacity as Curatrix Bonis)
RESPONDENT

Neutral citation:
Lindsey and Others v Conteh (774/2022) [2024] ZASCA 13 (6
February 2024)
Coram:
SALDULKER, HUGHES, MABINDLA-BOQWANA and MATOJANE JJA
and UNTERHALTER AJA
Heard:
1 September 2023

Delivered:  This judgment was handed down electronically by circulation to the
parties’ representatives by email, publication on the Supreme Court of Appeal website,
and release to SAFLII. The date for hand down is deemed to be 6 February 2024 at
11h00.
Summary:  Private international law – enforceability of foreign judgment – civil
procedure – provisional sentence – liquidity.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Gauteng Division of the High Court, Johannesburg (Siwendu J,
sitting as court of first instance):
The appeal is dismissed with costs, including the costs of two counsel where so
employed.
___________________________________________________________________

JUDGMENT
___________________________________________________________________
Hughes JA and Unterhalter AJA (Saldulker, Mabindla-Boqwana and Matojane
JJA concurring):
Introduction
[1] The central issue in this appeal is whether a series of orders and two writs, one
of possession and another of execution, granted by the Superior Court of California in
the State of California, United States of America, cumulatively, constitutes a liquid
document and may be enforced by way of provisional sentence in South Africa. The
Gauteng Division of the High Court, Johannesburg (the high court), after analysing
these documents, dismissed the appellants’ application for provisional sentence. The
high court concluded that, ‘the judgment does not constitute prima facie proof of a debt
enforceable by provisional sentence’, as it did not comprise a liquid document. It is
with the leave of the high court that we are seized with the appeal before this Court.

The parties
[2] African Wireless Incorporated (AWI) is a corporation registered in terms of the
laws of the State of Delaware in the United States of America and is cited as the sixth
appellant. The first to fifth appellants are the shareholders of AWI, and, in terms of the
Laws of the State of Delaware and the State of California, they act derivatively on
behalf of AWI. The shareholders are as follows: James R Lindsey, a trustee of the

Lindsey Family Trust; William Buck Johns and Marc van Antro, both businessmen; and
lastly, a company registered in the British Virgin Islands, Wymont Services Limited.

[3] The respondent is a businessman and citizen of the United States of America,
Alieu Badara Mohamed Conteh (Mr Conteh), who now resides in Bryanston,
Johannesburg. Mr Conteh is duly substituted by Brigitte van Geesbergen Conteh, in
her capacity as curatrix bonis.

Background
[4] On 12 August 2014, the appellants, in the Superior Court of California, County
of Orange (the Californian Superior Court), filed a complaint against Mr Conteh. The
lawsuit is a shareholder derivative suit, similar to a derivative action in terms of s 165
of the Companies Act 71 of 2008 in our law. In essence, this is when ‘[a] shareholder
may bring a derivative suit on the corporation’s behalf where management (or any third
party) breaches a duty owed to the corporation and the corporation fails to assert its
cause of action. The shareholder is merely a nominal plaintiff in such an action’.1

[5] The basis of the complaint was that Mr Conteh allegedly transferred 51 shares
of Resotel SPRL (Resotel) to Odessa Capital incorporated (Odessa) and 2 shares of
Congolese Wireless Network SPRL (CWN) to two companies OOA One LLC and OOA
Two LLC, without the required permission of AWI. The transfer of these shares was to
companies wholly owned by Mr Conteh.

[6] The appellants obtained an order of judgment by default on 13 May 2016. The
potential difficulties with this default order, under Californian law, were highlighted to
the appellants, who were invited to correct the deficiencies by either filing an amended
complaint or continuing by way of a default prove-up hearing. They chose the default
prove-up hearing, which was held on 10 June 2016. Judge Servino presided, and on
6 July 2016, the Californian Superior Court ordered a ‘constructive trust on behalf of
AWI over the 51 shares of Resotel that were transferred to Odessa Capital, Inc. on

1 Order of the Superior Court of the State of California, County of Orange, per Servino J, dated 6 July
2016.

December 12, 2001 and the 2 shares of CWN that were transferred to OOA-One, LLC
and OOA-Two, LLC in 2010’.

[7] On 29 August 2016, the appellants returned to the Californian Superior Court
and obtained an order against Mr Conteh, which instructed him, forthwith, to turn over
the 51 shares of Resotel and 2 shares of CWN to the appellants. In terms of the law
of the State of California, Code of Civil Procedure section 662, the same court also
made an order placing a value upon the shares ‘for bond purposes only’, which would
equate to a value for security in South African law. The court found the value of the 51
shares of Resotel to be US$84 963 329 and the value of the 2 shares of CWN to be
US$8 329 738.

[8] On 15 September 2016, and again in the Californian Superior Court before
Servino J, the appellants approached the court on an ex parte basis seeking to convert
the amended 29 August 2016 judgment to a monetary judgment; and to appoint a
collections receiver to assist in the execution of the judgment. Servino J dismissed
these two applications. In order to safeguard the shares, she decided to impose a stay
upon AWI ‘from taking corporate actions that would adversely impact the transfer or
“turnover” of the stock shares’. Pertinently, during argument, the judge clarified the
position of the order of 29 August 2016, stating that ‘. . . the minute order of August 29
is indeed a supplemental order pursuant to the code section to be relied upon, which
is 714.010, 030’. In addition, she explained that the amount for bond purpose allocated
to the shares was of sufficient value to be included in the writ of execution under the
Californian Civil Code of Procedure, and that the 29 August 2016 order constituted a
supplementary order for value.

[9] Mr Conteh, in turn, brought an application on 15 December 2016 before Servino
J, to recall and quash the writ of possession, which application was dismissed. The
three grounds for the application were as follows:
(a)
The writ should be quashed as the judgment had been satisfied;
(b)
The writ does not contain the last known address of the respondent, as is
required by the Code of Civil Procedure section 712.020 subsection (c); and
(c)
The writ contains a value for the property that the judgment does not contain.

[10] Notably, from Servino J’s ruling handed down on 16 December 2016, the court
reaffirmed that, ‘[t]he writ properly reflected the intentions of this Court with the
valuation being provided in a supplemental order and further clarification at the hearing
on an ex parte application’. Hence, a value having been placed on the shares resulted
in the dismissal of the respondent’s application to quash the writ of possession issued
on 11 October 2016. This writ of possession was converted to a writ of execution on
28 February 2017 with the judgment value assigned as US$93 million.

[11] In one of the appeals heard in the matter, the Court of Appeal of the State of
California, Fourth Appellate District, Division Three, granted an order staying the
judgment enforcement proceedings filed on 29 January 2018. The court reasoned that
‘the [appellants] were not entitled to an actual money judgment in the default
proceedings’ and it was the appellants who by opting for the default prove-up hearing,
had declined to amend their pleadings when they were given an opportunity to do so.

[12] Mr Conteh sought to appeal the default judgment, which failed. The appeal court
reasoned that:
‘[The respondent] request[ed] for the first time in their reply brief that we determine whether
the judgment may be enforced as one for money. Such an issue is not before us as it concerns
post-judgment enforcement matters which postdate the default judgment from which [the
respondent] appealed. It is proper for adjudication in the trial court in the first instance.’

Before the high court
[13] In the provisional sentence proceedings in the high court the appellants pleaded
as follows:
‘8.
Under the Laws of the state of California, County of Orange, Code of Civil Procedure
(“CCCP”) Subdivisions 714.010 – 714.030, the August 29, 2016 Ruling and Order; the August
29, 2016 Judgment, the September 15, 2016 Supplemental Order, and the December 16,
2016 Order (“the Judgments”), read cumulatively, constitute a final and binding Judgment
executable upon the Defendant according to the following procedure inter alia:
8.1
714.010(a): A judgment for possession of personal property may be enforced by a writ
of possession of personal property issued pursuant to Section 712.010;
8.2
714.020(a): To execute the writ of possession of personal property, the levying officer
shall search for the property specified in the writ and, if the property is in the possession of the
judgment debtor or an agent of the judgment debtor, take custody of the property in the same

manner as a levy under a writ of execution on such property in the possession of the judgment
debtor;
8.3
714.020(b): If the property specified in the writ of possession cannot be taken into
custody, the levying officer shall make a demand upon the judgment debtor for the property if
the judgment debtor can be located. If custody of the property is not obtained, the levying
officer shall so state in the return. Thereafter, the judgment for the possession of the property
may be enforced in the same manner as a money judgment for the value of the property as
specified in the judgment or a supplemental order.’2

[14] Simply put, the appellants’ case is that the foreign default judgment together
with the post judgment enforcement orders, read cumulatively, constitute a final and
binding money judgment. They contended that, by operation of law, the judgment was
enforceable in the same manner as a ‘money Judgment for the value of the Shares’,
as it was converted into a liquid and executable money judgment under the laws of
California. In the result, the writ of execution issued to enforce the judgment constitutes
a court order and as such the non-payment thereof enabled the appellants to seek
provisional sentence.

[15] In the provisional sentence proceedings before the high court, an affidavit by
the US attorney for the appellants, Mr Dillion, was placed before the court. Mr Dillion
proceeded to clarify the procedural law and enforcement procedures in respect of the
relevant parts of the Californian Civil Code of Procedure (CCCP) which were
applicable. He stated:
‘Pursuant to the Judgments the Plaintiffs caused to be issued under CCCP 712.010 and
executed by the Court, a writ of possession requiring the levying officer to take possession of
the shares from the Defendants and to turn over the shares to the Plaintiffs. The writ was duly
served. The Defendants failed to turn over the shares to the Plaintiffs. The Sheriff sought to
make demand upon [the Defendants] who evaded service. The shares could not be taken into
custody, the levying officer so stating in his return.
. . .
Such endeavours of evasion of service “NOT FOUND” under California Law satisfy the
requirements of Code 714.020(b) in that the Defendant, Mr Conteh, could not be found, and
custody of the shares could not be obtained.

2 The Subdivisions fall under Division 3 titled Enforcement of Nonmoney Judgment (Title 9 Enforcement
of Judgments).

Thereupon, as aforesaid by operation of the law the Judgments become enforceable in the
same manner as a money Judgment for the value of the shares as specified in the
supplemental order . . . according to CCCP 3289(b).
As it was entitled to do, on February 28, 2017 the Plaintiffs procured that the Court issue a
Writ of Execution . . . for the enforcement of the money Judgment against the Defendant . . .’

[16] Mr Conteh’s case was simply that the foreign judgment, whether individually or
collectively comprised, did not constitute a money judgment and, hence, not a liquid
document. What was before the courts was merely a judgment for the delivery of
shares.

[17] The high court found that the foreign judgment did not constitute prima facie
proof of a debt enforceable by provisional sentence and dismissed the application for
provisional sentence. The high court reasoned that extrinsic evidence on Californian
law was required to demonstrate that there was a conversion of the order to turn the
shares over into a debt in monetary terms, which would constitute a money judgment.
The high court found that because resorting to such extrinsic evidence was needed, it
was contrary to the courts’ typically strict compliance with the requirements for the
grant of provisional sentence.

Provisional sentence
[18] A foreign judgment is not directly enforceable in South Africa, but, as Jones v
Krok (Jones) has held, it constitutes a cause of action and will be enforced by our
courts provided:
‘(i) that the court which pronounced the judgment had jurisdiction to entertain the case
according to the principles recognised by our law with reference to the jurisdiction of foreign
courts (sometimes referred to as “international jurisdiction or competence”); (ii) that the
judgment is final and conclusive in its effect and has not become superannuated; (iii) that the
recognition and enforcement of the judgment by our courts would not be contrary to public
policy; (iv) that the judgment was not obtained by fraudulent means; (v) that the judgment does
not involve the enforcement of a penal or revenue law of the foreign state; and (vi) that
enforcement of the judgment is not precluded by the provisions of the Protection of Businesses
Act 99 of 1978, as amended. Apart from this, our courts will not go into the merits of the case

adjudicated upon by the foreign court and will not attempt to review or set aside its findings of
fact or law.’3

[19] Provisional sentence is a summary remedy that speedily enables a creditor
armed with a liquid document to attain relief without bringing a trial action.4 In addition,
provisional sentence is one of the recognised procedures for the enforcement of a
foreign judgment in our courts. This remedy is provisional in nature, and a final
judgment may still be rendered in the principal case. 5  A further feature of this
procedure is that although this remedy advantages a creditor, the debtor/defendant is
afforded an opportunity to insist on security being paid, pending the final judgment.6

[20] In Harrowsmith v Ceres Flats (Pty) Ltd, the court elucidated the provisional
sentence proceedings as follows:7
‘The theory behind provisional sentence is that it is granted on the presumption of the
genuineness and the legal validity of the documents produced to the Court. The Court is
provisionally satisfied that the creditor will succeed in the principal suit. The debt disclosed in
the documents must therefore be unconditional and liquid (zuiwer en klaar of liquid).’

[21] The proof that the plaintiff relies upon a liquid document rests with the plaintiff;
it must be a written instrument signed by the defendant acknowledging indebtedness
unconditionally for a fixed amount of money. The debt must be fixed, definitive,
sounding in money and evident on the face of the document relied upon. The
document ought to ‘speak for itself’ and there must be an unequivocal or unconditional
acknowledgement of indebtedness.8

[22] Generally, the need for extrinsic evidence nullifies liquidity. However, the
situation has evolved over time, and there has been a move away from the stringent

3 Jones v Krok 1995 (1) 677 (A) 687at 685B-D.
4 Oliff v Minnie [1952] 4 All SA 235 (A); 1952 (4) SA 369 (A); Joob Joob Investments (Pty) Ltd v Stocks
Mavundla Zek Joint Venture [2009] ZASCA 23; [2009] 3 All SA 407 (SCA); 2009 (5) SA 1 (SCA).
5 Ndamase v Functions 4 All [2004] ZASCA 32; 2004 (5) SA 602 (SCA) para 11.
6 Twee Jonge Gezellen (Pty) Ltd and Another v Land and Agricultural Development Bank of South Africa
t/a The Land Bank and Another [2011] ZACC 2; 2011 (5) BCLR 505 (CC); 2011 (3) SA 1 (CC) para 16.
7 Harrowsmith v Ceres Flats (Pty) Ltd [1979] 4 All SA 45 (T); 1979 (2) SA 722 (T) at 728C-D. This
decision was confirmed by this Court in Wollach v Barclays National Bank Ltd [1983] 2 All SA 17 (A);
1983 (2) SA 543 (A) at 567D-F.
8 Barlow Rand Ltd t/a Barlow Noordelik Masjinerie Maatskappy v Self-Arc (Pty) Ltd 1986 (4) SA 488 (T)
at 490E-F.

principle of ‘the document must speak for itself’.9 As Jones10 made plain, provisional
sentence is one of the recognised procedures by recourse to which the enforcement
of a foreign judgment in our courts may be effected. In order to make out a cause of
action, the summons may need to traverse aspects of the law of the jurisdiction in
which the judgment was given. There may thus be a need for some greater flexibility
as to what evidence extrinsic to the foreign judgment itself may be permissible.

A foreign judgment for the grant of provisional sentence
[23] Our law recognises a judgment of a court as being prima facie proof of a debt
due and an acknowledgement of indebtedness of the amount sought in the judgment.11
The basis of such recognition was stated long ago in Williams v Jones,12 where the
court said:
‘[W]here a court of competent jurisdiction has adjudicated a certain sum to be due from one
person to another, a legal obligation arises to pay that sum, on which an action for debt to
enforce the judgment may be maintained. It is in this way that the judgments of foreign and
colonial courts are supported and enforced.’

[24] The onus lies with the plaintiff to establish the jurisdiction, finality and
conclusiveness of a foreign judgment, if so challenged. Once armed with a prima facie
final and conclusive judgment the plaintiff is entitled to the relief sought in our courts
and the onus then falls on the defendant to demonstrate that the enforcement of the
foreign judgment in our country would be ‘contrary to the principles of natural justice
and public policy’.13

[25] Lastly, in Richman v Ben-Tovim the following is to be found:
‘In addition, it is now well established that the exigencies of international trade and commerce
require “. . . that final foreign judgments be recognised as far as is reasonably possible in our
courts, and that effect be given thereto.”  This court (albeit in a slightly different context) said
in Mayne v Main that a “common-sense” and “realistic approach” should be adopted in
assessing jurisdictional requirements because of “. . . modern-day conditions and attitudes
and the tendency towards a more itinerant lifestyle, particularly among business people. And

9 Ibid.
10 Jones fn 3 at 687-688.
11 Ibid at 686.
12 Williams v Jones (1845) 13 M&W 628 at 633; 153 ER 262 at 265.
13 Jones fn 3 at 692D and the cases cited therein.

because not to do so might allow certain persons habitually to avoid the jurisdictional nets of
the courts and thereby escape legal accountability for the wrongful actions”.’ 14

Discussion
[26]   The recognition and enforcement of foreign judgments is a matter of importance
in a world of ever greater international commerce. On appeal is the determination of
the true character of the Californian judgment for purposes of provisional sentence.
The appellants contended that the foreign judgment relied on, cumulatively, constitutes
a liquid document15, even though the initial judgment was for the turnover of shares.
An attempt was made to retrieve the shares by way of a writ of possession. This was
unsuccessful. A monetary value was ascribed to the shares and a writ of execution for
the monetary value of the shares was issued. This suffices, the appellants submit, to
secure provisional sentence.

[27] In Jones,16 as we have explained, this Court made it plain that a foreign
judgment is not directly enforceable, but constitutes a cause of action. It then set out
the requirements that must be met for a foreign judgment to be enforced by our courts.
Those requirements are not sought to be qualified by the parties to this appeal. Nor is
there any dispute that a final judgment was rendered by the Superior Court of
California, County of Orange (the California Court). What is in issue is this: what
judgment debt did the orders of the California Court give rise to that are enforceable
in our courts by way of provisional sentence?

[28]  Ordinarily this should pose little difficulty. The judgment of the foreign court
provides proof of the debt due by the party identified in the court’s order, and, as Jones
made plain,17  it is prima facie  the clearest possible proof of that debt. What debt was
owed by the Respondent, Mr Conteh, arising from the orders of the California Court?

14 Richman v Ben-Tovim [2006] ZASCA 121; 2007 (2) SA 283 (SCA); [2007] 2 All SA 234 (SCA) para
9.
15 As is evident in the writ of execution (money judgment) issued 2/28/2017 by the clerk of the court in
the amount of US$93 293.067.00.
16 Jones fn 3 at 685.
17 Ibid at 686A.

[29]   The appellants plead in their summons that the California Court made a Ruling
and Order dated August 29, 2016; issued a Judgment on the same day; made a
supplemental order date September 15, 2016; and rendered a further supplemental
order dated December 16, 2016. The summons proceeds to claim that these orders,
read cumulatively, constitute a final and binding judgment executable upon Mr
Conteh. We shall refer to these orders, collectively, as the California Court Orders.
The appellants then rely upon the relevant provisions of the laws of the State of
California to explain how the judgment obtained against Mr Conteh was enforced. In
essence, a judgment for the possession of personal property of the kind obtained in
terms of the California Court Orders may be enforced by a writ of possession of
personal property, thereby taking custody of such property in possession of the
judgment debtor or his agent. If custody of the property is not obtained in this way, the
levying officer shall reflect this in the return, and thereafter the judgment for the
possession of the property may be enforced in the same manner as a money
judgment for the value of the property, as specified in the judgment.

[30]   The judgment debt contained in the California Court Orders was for the
possession of property. That is, for Mr Conteh, among others, to turn over to the
appellants 51 shares of Resotel Sprl, and 2 shares of Congolese Wireless Network
Sprl. In addition, the California Court Orders determined that the value of these shares
was $84 963 329 for the Resotel shares, and $8 329 738 for the Congolese Wireless
Network shares. The California Court Orders do not order Mr Conteh to pay an
amount of money, they require Mr Conteh to deliver up (to use our terminology)
specified shares.

[31]  We do not understand the appellants to argue otherwise. What they contend is
that under Californian law, the California Court Orders for the possession of property
may be enforced in the same manner as a money judgment for the value of the
property, which value the California Court had determined. Two important features of
the relevant provisions of Californian law bear emphasis. First, court orders for the
possession of property cannot be enforced as a money judgment immediately upon
being made. The enforcement of such an order requires the steps by way of
enforcement, outlined above, to be taken. The levying officer must have failed to take
custody of the property; made demand of the judgment debtor, if the debtor can be

located; the levying officer must then make a return that the property cannot be
obtained. Only then may the judgment for the possession of property be enforced ‘in
the same manner’ as a money judgment. As the matter was put by the Court of Appeal
of the State of California that heard an appeal arising from the California Court Orders,
‘respondents were not entitled to an actual money judgment in the default judgment
proceedings’, being proceedings brought by the appellants before the California
Court.

[32]   The second feature of note is that the relevant provisions of Californian law
permits the enforcement of the Californian Court Orders ‘in the same manner’ as a
money judgment. These provisions do not render the California Court Orders a money
judgment. This is not a semantic quibble. The California Court Orders remain
unchanged. Their enforcement however is made possible, once the return of the
property cannot be obtained, as if they were a money judgment. Thus, by operation
of law, if the property cannot be obtained, a means of enforcement is secured to
execute upon the value of the property. However, if the shares could have been
obtained under writ, there could have been no election to enforce the California Court
Orders as a money judgment. This demonstrates that the California Court Orders do
not constitute a money judgment, even though they may be capable of enforcement
as such, under specified conditions.

[33]    The question that then arises is this: even if the California Court Orders are not
a money judgment, is there any reason why the enforcement of these orders as a
money judgment in terms of the law of California should not be recognised and
enforced by a South African court? The difficulty is that a South African court will not
generally apply foreign rules of procedure in the exercise of its own adjudicative
functions.18 This is a matter of sovereignty.19 South African courts are not merely
instruments by which the law of California secures the enforcement of court orders
made by the courts of California. Put differently, the process of the California Court
does not run through the territory of South Africa. How such process may be given
effect to is regulated under statute. Section 40 of the Superior Courts Act 10 of 2013

18 Society of Lloyds v Price; Society of Lloyd’s v Lee’ [2006] ZASCA 88; 2006 (5) SA 393 (SCA) para
22.
19 Ex parte Registrar, Supreme Court, Bophuthatswana 1980 (1) SA 572 (B) at 578.

sets out the basis upon which letters of request in connection with any civil
proceedings received from any state, territory or court outside of South Africa may be
given effect to.

[34]    The summons issued by the appellants for provisional sentence relied upon a
cause of action for the recognition and enforcement of a foreign judgment. It did not
seek the assistance of our courts to give effect to the procedures of the law of
California in terms of which the enforcement of a foreign judgment may be rendered
in the same manner as a money judgment. As this Court observed in Society of
Lloyd’s20 provisional sentence proceedings for the enforcement of a foreign judgment
may be a step towards eventual execution, but cannot be regarded as part of the
process of execution. The foreign judgment relied upon in the summons is constituted
by the California Court Orders. The California Court Orders do not comprise a money
judgment, even though, under the law of California, the California Court orders may
be capable of enforcement as a money judgment. The summons does not ask a South
African court to execute the enforcement procedures of the law of California. It is
doubtful that such a cause of action is good in law.

[35]   But it suffices that, for the purposes of deciding this appeal, the summons
sought provisional sentence based upon a foreign judgment that is not a money
judgment, as we have explained. Once that is so, provisional sentence cannot be
granted, on the cause of action set out in the summons. The California Court Orders
do not constitute a liquid document evidencing an unconditional acknowledgement of
indebtedness, in a fixed sum of money. The appeal must accordingly fail.

[36]   The high court was correct to refuse provisional sentence. However, we reach
this conclusion for different reasons. In our view, it is not the recourse of the appellants
to extrinsic evidence that rendered provisional sentence unavailable to them. Rather,
the foreign judgment they relied upon is not a money judgment, and hence not a liquid
document. The appeal must accordingly fail, and there is no reason why costs should
not follow the result.

20  Society of Lloyd’s fn 18 above para 30.

[37] The following order is made:
The appeal is dismissed with costs, including the costs of two counsel where so
employed.

___________________
W HUGHES
JUDGE OF APPEAL

___________________
D N UNTERHALTER
ACTING JUDGE OF APPEAL

Appearances

For the appellant:
A Bham SC and N Alli
Instructed by:
Knowles Husain Lindsay Incorporated, Sandton

McIntyre Van der Post, Bloemfontein

For the respondent:
John Peter SC and R Stevenson
Instructed by:
Clarks Attorneys, Johannesburg

Webbers Attorneys, Bloemfontein

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

6 February 2024
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Lindsey and Others v Conteh (774/2022) [2024] ZASCA 13 (6 February 2024)
Today, the Supreme Court of Appeal (SCA) dismissed an appeal against the decision of the Gauteng
Division of the High Court, Johannesburg (the high court), with costs, including the costs of two counsel.
The facts of the matter were as follows. African Wireless Incorporated (AWI) was a corporation
registered in terms of the laws of the State of Delaware in the United States of America and was cited
as the sixth appellant. The first to fifth appellants were the shareholders of AWI, and in terms of the
Laws of Delaware and the State of California were acting derivatively on behalf of AWI. The respondent
was a businessman and citizen of the United States of America, Alieu Badara Mohamed Conteh (Mr
Conteh), who now resided in Bryanston, Johannesburg. On 12 August 2014, the appellants, in the
Superior Court of California, County of Orange (the Californian Superior Court), filed a complaint against
Mr Conteh. The lawsuit was categorised as a shareholder derivative suit, similar to a derivative action
in terms of s 165 of the Companies Act 71 of 2008 in our South African law. The basis of the complaint
was that Mr Conteh allegedly transferred shares of companies without the requisite permission from
AWI. Incidentally, the transfers of those shares were to companies wholly owned by Mr Conteh. The
appellants obtained an order of judgment by default on 13 May 2016. On 29 August 2016, the appellants
returned to the Californian Superior Court and obtained an order against Mr Conteh, which instructed
him, forthwith to turn over the shares to the appellants. Thereafter, a writ of possession was converted
to a writ of execution on 28 February 2017 with the judgment value assigned as US$93 million.
The central issue in this appeal was whether a series of orders and two writs, one of possession and
another of execution, granted by the Superior Court of California in the State of California, United States
of America, cumulatively, constituted a liquid document and could be enforced by way of provisional
sentence in South Africa. The high court, after analysing these documents, dismissed the appellants’
application for provisional sentence. The high court concluded that, the judgment did not constitute
prima facie proof of a debt enforceable by provisional sentence, as it did not comprise a liquid document.
It was with the leave of the high court that the appeal came before this Court.
The appellants’ contended that the foreign default judgment together with the post judgment
enforcement orders, read cumulatively, constituted a final and binding money judgment. They further
contended that, by operation of law, the judgment was enforceable in the same manner as a money
Judgment for the value of the Shares, as it was converted into a liquid and executable money judgment
under the laws of California. And therefore, the writ of execution issued to enforce the judgment
constituted a court order and as such the non-payment thereof enabled the appellants to seek
provisional sentence. Mr Conteh’s case on the other hand, was simply that the foreign judgment,
whether individually or collectively comprised, did not constitute a money judgment and therefore, was
not a liquid document. What was before the courts was merely a judgment for the delivery of shares.
The SCA held that the high court was correct to refuse provisional sentence. However, it reached that
conclusion for different reasons. According to the SCA, the judgment debt contained in the California
Court Orders was for the possession of property. It did not order Mr Conteh to pay an amount of money,
rather, it required Mr Conteh to deliver up specified shares. The Court further held that although, the
California Court Orders for the possession of property may be enforced in the same manner as a money
judgment for the value of the property, which value the California Court had determined.  Their

enforcement, however, was only made possible, once the return of the property could not be obtained,
as if they were a money judgment. Thus, by operation of law, if the property could not be obtained, a
means of enforcement was secured to execute upon the value of the property. But, if the shares could
have been obtained under writ, there could have been no election to enforce the California Court Orders
as a money judgment. This, held the SCA, demonstrated that the California Court Orders did not
constitute a money judgment, even though they were capable of enforcement as such, under specified
conditions.
The question that then arose was this: even if the California Court Orders were not a money judgment,
was there any reason why the enforcement of those orders as a money judgment in terms of the law of
California could not be recognised and enforced by a South African court? The SCA found that South
African courts would not generally apply foreign rules of procedure in the exercise of its own adjudicative
functions.  The process of the California Court did not run through the territory of South Africa. How
such process could have been given effect to was regulated under statute in terms of s 40 of the
Superior Courts Act 10 of 2013. The section set out the basis upon which letters of request in connection
with any civil proceedings received from any state, territory or court outside of South Africa could have
been given effect to.  It thus, suffices that, for the purposes of deciding this appeal, the summons sought
provisional sentence based upon a foreign judgment that was not a money judgment. Once that was
so, provisional sentence could not be granted, on the cause of action set out in the summons. The
California Court Orders did not constitute a liquid document evidencing an unconditional
acknowledgement of indebtedness, in a fixed sum of money. Therefore, the appeal must accordingly
fail.

~~~~ends~~~~