Tag Archive for: Employment

Online Symposium on Recent Developments in African PIL (V) – Cross-border employment, competition and delictual liability merge in the South African High Court: Placement International Group Limited v Pretorius and Others

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As part of the second online symposium on recent developments in African private international law, we are pleased to present the fifth contribution, kindly prepared by Elisa Rinaldi (University of Pretoria, South Africa) on Cross-border employment, competition and delictual liability merge in the South African High Court: Placement International Group Limited v Pretorius and Others.

 

The High Court of South Africa recently heard a dispute that concerned an application for interim relief to interdict South African competitors from competing in the field of international recruitment.[i] The case of Placement International Group Limited v Pretorius and Others [2025] ZAGPPHC 1252 centred on the work undertaken by international hiring companies who, with the rise of transnational employment, facilitate the recruitment and placement of potential employees from anywhere in the world. The applicant in this dispute, Placement International Group Limited, a company incorporated in Hong Kong, is a hiring company who worked to source candidates in South Africa for employment opportunities overseas. The dispute was brought by Placement International against a previous employee who, upon leaving the applicant’s employment, went on to establish her own hiring company. The respondents, a South African national, and her company, Integricore Global (Pty) Ltd, incorporated in South Africa, aimed to facilitate the hiring of South African candidates, resulting in direct competition with the applicant. Aggrieved, the applicant turned to the South African High Court to request that they interdict Integricore from sourcing candidates in South Africa as they considered this to amount to unlawful competition. The relief sought by the applicant was based on South African common law.

The alleged unlawful competition arose out of an employment relationship between the applicant and respondent. The central contention by the applicant was that the respondent had breached her fiduciary duties by establishing Integricore and working in direct competition with Placement International.[ii] The applicant argued that the information regarding potential candidates and companies was proprietary confidential information which the respondent required and used in order to establish Integricore.[iii]  The right to claim relief for breach of an employee’s fiduciary duties exists in South African common law, granting the aggrieved party a right to claim under either delict or contract.[iv] Such an election is permitted in South African law and in this case, the applicant decided to claim under delictual breach of fiduciary duty rather than under the terms of the contract.

The decision to claim under delict prompted an interesting investigation into the integrity of such claim. The reason being is that the employment contract, between the applicant and responded, contained a restraint of trade clause which, as according to the choice of law clause within the contract, should have been governed by Hong Kong law.[v] The applicant, however, decided not to enforce the contractual provision for reasons that turned out to be rather interesting. While employers are said to be in a generally stronger bargaining position when it comes to choice of law, in this instance the choice of Honk Kong law applied against the employer. As it came to be revealed, the position of restraint of trade clauses in Hong Kong law is that they are generally void for being against public policy.[vi] This is the case unless the employer is able to show that the restrictions are necessary to protect their legitimate business interests. In South Africa the position is reversed. Restraint of trade clauses are generally valid and enforceable unless they are deemed unreasonable.[vii] In determining whether a restraint of trade clause is unreasonable, a court will consider whether the business interest is deserving of protection and weigh this against the interests, of the former employee, to earn a living. Irrespective of this distinction, the applicant chose to rely on South African common law instead of the contract, likely because of the fact that the application of Hong Kong law would not result in their favour.

The decision to rely on the common law led the High Court to consider whether this amounted to an abuse of process. Reason being is that, the common law right to claim relief for breach of fiduciary duty is a right that comes to existence through the employment contract, a point which the court rightfully made:

“It is a far cry to approach the court for common law relief based on a fiduciary duty arising from the contract of employment when the same contract does not have the same consequence under Hong Kong law as a South African contract of employment. That creates doubt on the applicant’s entitlement to common law interdictory relief by merely jettisoning a troublesome consequence of the choice of law in the contract of employment.”[viii]

Nevertheless, the court reasoned that the decision to rely on the South African common law could not amount to an abuse of process in light of there being doubt as to whether the applicant would have been able to establish a contractual right under Hong Kong law for the enforcement of the restraint of trade clause.[ix] The protection of lawful competition also seemed to necessitate a decision on the merits.[x] Having concluded that there was no abuse of process, the court went on to make its judgment against the applicant. A number of reasons were made, most of which were due to the circumstances surrounding the termination of the employment relationship between the applicant and respondent.[xi] In essence, the competition arising from the activities of Integricore was found to be lawful, meaning there was no right from which to claim interdictory relief. The respondent’s knowledge of the South African market was found to be part of the respondent’s general skill set and not part of the applicant’s proprietary confidential information. In other words, the applicant had not proven that there was a reasonable apprehension of irreparable harm, which is an element that must be proven in order for the interdict application to succeed. Lastly, the court held that it would be unlikely to grant relief by exercise of their judicial discretion due to the contractual relationship being governed by Hong Kong law.

Certain concerns have been raised in respect to the lack of a private international law approach by the High Court in this judgment. These concerns can be read here. Essentially, the court failed to conduct a proper investigation into the choice of law governing the unlawful competition claim. A private international law approach would have necessitated characterising the dispute and determining which law would apply, either by application of a conflict rule or through the determination of which legal system is manifestly closer or significantly connected to the dispute. The South African choice of law rule for delictual disputes is the lex loci delicti.[xii] The court, however, did not follow through with a determination on the choice of law. Nonetheless, I do not believe that the court erred in their approach for a few reasons. The main issue concerned the question of whether the applicant had met the requirements for an interdict, as according to South African law. The applicant had approached the High Court for interdictory relief on the basis of South African common law. The court scrutinized this decision in light of the employment contract and its express choice of Hong Kong law. Far from ignoring the relevance of foreign law, the court went on to ascertain the content of Hong Kong law in respect to restrain of trade. The determination of whether the applicant had established a prima facie right to claim interdictory relief, as well as whether the court should grant discretionary relief in lieu of a prima facie right hinged on the employment contract, its choice of Hong Kong law as well as its subsequent repudiation. A determination of the applicable law over the alleged unlawful competition was not necessary in order for the court to make its conclusion. The question of whether the competition was unlawful was answered by looking at the surrounding circumstances of the employment contract and, more specifically, the conduct of the applicant in respect to the contract. The employment contract and its choice of law clause was central to the court’s adjudication of the matter.

While a clear and express private international law approach is always valuable, particularly in South Africa where private international law disputes are not often heard, a dogmatic choice of law approach is not always necessary. The court may in fact be commended for how it handled the aspects of foreign law which arose in this dispute. The court went through the process of actually ascertaining the position in Hong Kong law, highlighting the importance of express choice of law clauses within contractual agreements. What may be considered a cosmopolitan approach, akin to private international law concerns, ensured the court considered factors beyond the elements necessary for interdictory relief under South African law. The court raised concerns surrounding potential abuse of process, which factored heavily in the courts choice to not grant discretionary relief. The attention brought to these concerns are welcomed, particularly in the face of the relative ease that transnational employers have over the litigation process.[xiii]

 

Previous contributions:

  1. Online Symposium on Recent Developments in African Private International Law, by Béligh Elbalti & Chukwuma S.A. Okoli (Introductory post)
  2. Recognition and Enforcement of International Judgments in Nigeria, by Abubakri Yekini & Chukwuma Samuel Adesina Okoli
  3. The Recognition and Enforcement of Foreign Judgments within the CEMAC Zone, by Boris Awa
  4. Foreign Judgments in Mozambique through the Lens of the Enforcement of a Chinese Judgment: Liberal Practice in the Shadow of Statutory Rigidity, by Béligh Elbalti
  5. Party Autonomy, Genuine Connection, Convenience, Costs, Privity, and Public Policy: The Kenyan High Court on Exclusive Jurisdiction Clauses, by Anam Abdul – Majid and Kitonga Mulandi

 

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[i] Placement International Group Limited v Pretorius and Others [2025] ZAGPPHC 1252 (Placement International).

[ii] Ibid para 1-9.

[iii] Ibid para 6

[iv] See generally, Lillicrap Wassenaar and Partners v Pilkington Brothers [1985] 1 All SA 347 (A).

[v] Placement International (n1) para 33.

[vi] Ibid para 30.

[vii] For a very recent judgment on restraint of trade clauses in South Africa see, TWK Agri (Pty) Ltd v Holtzhausen and Another [2025] ZALCJHB 252.

[viii] Placement International (n1) para 33.

[ix] Ibid para 40.

[x] Ibid.

[xi] Ibid para 42 – 50.

[xii] See Burchell v Anglin 2010 3 SA 48 (ECG) and Apleni v African Process Solutions (Pty) Ltd and Another (15211/17) [2018] ZAWCHC 160.

[xiii] See generally, Rinaldi E ‘A comparative analysis of the mandatory rule doctrine and its application in the South African Labour Court’ (2021) 15 Pretoria Student Law Review.

 

The Kenyan Supreme Court holds that Scottish Locus Inspection Orders must be Examined by the Kenyan Courts for Recognition and Enforcement in Kenya

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Miss Anam Abdul-Majid (LLM, University of Birmingham; LLB, University of Nairobi; BSC.IBA, United States International University; Advocate and Head of Corporate and Commercial Department, KSM Advocates, Nairobi, Kenya).

Dr Chukwuma Okoli (Assistant Professor in Commercial Conflict of Laws at the University of Birmingham; Senior Research Associate; Private International Law in Emerging Countries, University of Johannesburg)

We would like to thank Joy Chebet, Law Student at Kenyatta University, for her research assistance and comments. We would also like to thank Professor Beligh Elbalti for his critical comments on the draft blogpost.

 

 I. INTRODUCTION

Kenya is one of the countries that make up East Africa and is therefore part of the broader African region. As such, developments in Kenyan law are likely to have a profound impact on neighbouring countries and beyond, consequently warranting special attention.

In the recent case of Ingang’a & 6 others v James Finlay (Kenya) Limited (Petition 7 (E009) of 2021) [2023] KESC 22 (KLR), the Kenyan Supreme Court dismissed an appeal for the recognition and enforcement of a locus inspection order issued by a Scottish Court. The Kenyan Supreme Court held that ‘decisions by foreign courts and tribunals are not automatically recognized or enforceable in Kenya. They must be examined by the courts in Kenya for them to gain recognition and to be enforced’ [para 66]. In its final order, the Court recommended that in Kenya:

‘The Speakers of the National Assembly and the Senate, the Attorney-General, and the Kenya Law Reform Commission, attended with a signal of the utmost urgency, for any necessary amendments, formulation and enactment of statute law to give effect to this judgment and develop the legislation on judicial assistance in obtaining evidence for civil proceedings in foreign courts and tribunals.’

This Case is highly significant, because it extensively addresses the recognition and enforcement of foreign judgments in Kenya and the principles to be considered by the Kenyan Courts. It is therefore a Case that other African countries, common law jurisdictions, and further parts of the globe could find invaluable.

 

II. FACTS

The Case outlined below pertained to the enforcement of a foreign judgment/ruling in Kenya, specifically, a Scottish ruling. As a brief overview, the Appellants were individuals who claimed to work for the Respondent, the latter being a company incorporated in Scotland.  However, their place of employment was Kenya, namely, Kericho. The nature of the claim consisted of work-related injuries, attributed to the Respondent’s negligence due to the Appellants’ poor working conditions at the tea estates in Kericho. The claim was filed before the courts in Scotland, where inspection orders were sought by the Appellants and granted by the Courts. The purpose of the locus inspection order was to collect evidence by sending experts to Kenya and submit a report which can be used by the Scottish court to determine the liability of the Respondent. However, the respondent fearing compliance with the Scottish locus inspection order, sought an order from Kenyan Court to prevent the execution of the locus inspection order in Kenya, leading to a petition being filed by the Appellants before the Employment and Labour Relations Court in Kenya.

Nevertheless, the trial court ruled against the Appellants and stated that the enforcement of foreign judgments in Kenya, especially interlocutory orders, required Kenyan judicial aid to ensure that the foreign judgments aligned with Kenya’s public policy. This was further affirmed by the Court of Appeal, which expressed the same views and reiterated the need for judicial assistance in enforcing foreign judgments and rulings in Kenya. The Court of Appeal held that decisions issued by foreign courts and tribunals are not automatically recognised or enforceable in Kenya and must be examined by the Kenyan courts to gain recognition and be enforced.

The matter was then brought before the Supreme Court of Kenya.

 

III. SUMMARY OF THE JUDGMENT BEFORE THE SUPREME COURT OF KENYA

With regard to the enforcement of foreign judgments, the Supreme Court had to determine ‘whether the locus inspection orders issued by the Scottish Court could be executed in Kenya without intervention by Kenyan authorities.’

However, the Appellants argued that the locus inspection orders were self-executing and did not require an execution process. Instead, inspection orders only required the parties’ compliance. Conversely, the Respondents argued that any decision not delivered by a Kenyan court should be scrutinised by the Kenyan authorities before its execution.

In its decision, the Supreme Court relied on the principle of territoriality, which it referred to as a ‘cornerstone of international law’ [para 51], and further elaborated on the importance of sovereignty. Based on the principle of territoriality, while upholding the principle of sovereignty, the Supreme Court stated that the ‘no judgment of a Court of one country can be executed proprio vigore in another country’ [para 52]. The Supreme Court’s view was that the universal recognition and enforcement of foreign decisions leads to the superiority of foreign nations over national courts. It likewise paves the way for the exposure of arbitrary measures, which are then imposed on the residents of a country against whom measures have been taken abroad. In its statements, the Supreme Court concreted the decision that foreign judgments in Kenya cannot be enforced automatically, but must gain recognition in Kenya through acts of authorisation by the Judiciary, in order to be enforced in Kenya.

The Supreme Court grounded the theoretical basis for enforcing foreign judgments in Kenyan common law as comity. It approved the US approach (Hilton v Guyot) to the effect that: ‘The application of the doctrine of comity means that the recognition of foreign decisions is not out of obligation, but rather out of convenience and utility’ [para 59]. The Court justified comity as:

‘prioritizing citizen protection while taking into account the legitimate interests of foreign claimants. This approach is consistent with the adaptability of international comity as a principle of informed prioritizing national interests rather than absolute obligation, as well as the practical differences between the international and national contexts.’ [para 60]

The Kenyan Supreme Court further established the importance of reciprocity and asserted that the Foreign Judgements (Reciprocal Enforcement) Act 2018 was the primary Act governing foreign judgments. The Court recognised that as a constituent country of the United Kingdom, Scotland is a reciprocating country under the Foreign Judgments (Reciprocal Enforcement) Act. However, the orders sought did not fall under the above Act, as locus inspection orders are not on the list of decisions that are expressly mentioned in the Act. Moreover, locus inspection orders are not final orders. Thus, the Supreme Court’s position was that the locus inspection orders could not fall within the ambit of the Foreign Judgments (Reciprocal Enforcement) Act, and the trial court and the Court of Appeal were incorrect in extending the application of the Act to these orders.

Consequently, the Supreme Court highlighted the correct instrument to be relied on for the above matter. It was the Supreme Court’s position that although the Civil Procedure Act does not specifically establish a process for the judicial assistance of orders to undertake local investigations, the same process as for judicial assistance in the examination of witnesses could be imitated for local investigation orders. Thus, the Supreme Court stated that:

‘The procedure of foreign courts seeking judicial assistance in Kenya for examination of witnesses was the same procedure to be followed for carrying out local investigations, examination or adjustment accounts; or to make a partition. That procedure was through the issuance of commission rogatoire or letter of request to the High Court in Kenya seeking assistance. That procedure was not immediately apparent. The High Court and Court of Appeal were wrong for extending the spirit of the beyond its application as that was not the appropriate statute that was applicable to the instant case.’ [para 26]

The process is therefore as under the Sections 54 and 55 of the Civil Procedure Act, Order 28 of the Civil Procedure Rules, as well as the Practice Directions to Standardize Practice and Procedures in the High Court made pursuant to Section 10 of the Judicature Act. It entails issuing a commission rogatoire or letter of request to the Registrar of the High Court in Kenya, seeking assistance. This would then trigger the High Court in Kenya to implement the Rules as contained in Order 28 of the Civil Procedure Rules, 2010 [92 – 99].

 

IV. COMMENTS

An interesting point of classification in this case might be whether this was simply one of judicial assistance for the Kenyan Courts to implement Scottish locus inspection orders in its jurisdiction. Seen from this light, it was not a typical case of recognising and enforcing foreign judgment. Nevertheless, the case presented before the Kenyan Courts, including the Kenyan Supreme Court was premised on recognition and enforcement of foreign judgments.

The Kenyan Supreme Court has settled the debate on the need for foreign judgments to be recognised in Kenya before they can be enforced. The Court also settled that owing to the principle of finality, interim orders could not fall within the Foreign Judgments (Reciprocal Enforcement) Act. It is owing to this principle of finality that the Supreme Court refused to extend the application of the Act to local investigation orders, but rather proceeded to tackle the latter in the same manner as under the Civil Procedure Act and Civil Procedure Rules.

The Supreme Court was correct in establishing that recognition is necessary before foreign judgments can be enforced in Kenya. The principles upon which the Supreme Court came to this conclusion were also correct since territoriality and sovereignty dictate the same. The Supreme Court set a precedent that the Civil Procedure Act and the Civil Procedure Rules are the correct instruments to be relied upon in issuing orders for local investigations, in contrast to the position of the Court of Appeal, which placed local investigations in the ambit of the Foreign Judgments (Reciprocal Enforcement) Act. The Supreme Court adopted its position based on section 52 of the Civil Procedure Act, which empowers courts to issue commission orders and lists local investigations under commission orders.

This decision is crucial, because not only did the Supreme Court lay to rest any confusion over what should constitute the applicable law for local investigations, it also sets down the procedure for foreign courts seeking judicial assistance in Kenya with regard to all four commission orders, as under the Civil Procedure Act. The Civil Procedure Act is the primary Act governing civil litigation in Kenya, while the Civil Procedure Rules 2010 are the primary subsidiary regulations for the same. Commission orders under this Act are divided into four as highlighted above: examination of witnesses, carrying out local investigations, examination or adjustment accounts, or making a partition.

This decision thus did not only tackle orders of local investigation but concluded the process for all four commission orders as highlighted above. In doing so, it established a uniform process for all four of the commission orders, in accordance with the Primary Act and Rules governing civil litigation in Kenya. Although it may appear that the Supreme Court has stretched the application of the Civil Procedure Rules, 2010 in the same way that the Court of Appeal stretched the application of the Foreign Judgments (Reciprocal Enforcement) Act; the Civil Procedure Rules, 2010 are more relevant, given that the rules touch on these four commission orders and are tackled in turn, in the same category, under the Civil Procedure Rules, 2010.  Moreover, while it is true that there is currently a gap in the law as the process for local investigations has not been outlined in the same way that it has been for examination of witnesses, by parity of reasoning the Supreme Court’s reasoning fits, and the logic behind adopting the same process is laudable.

Another interesting aspect of the Supreme Court’s decision is the endorsement of the US approach of comity as the basis of recognising and enforcing foreign judgments in Kenyan common law. This is indeed a radical departure from the common law approach of the theory of obligation, which prevails in other Commonwealth African Countries. In an earlier Case, the Kenyan Court of Appeal in  Jayesh Hasmukh Shah vs Navin Haria & Anor [para 25 – 26] adopted the US principle of comity to recognise and enforce foreign judgments. The principle of comity also formed the sole basis of enforcing a US judgment in Uganda in Christopher Sales v Attorney General, where no reciprocal law exists between the state of origin and the state of recognition. Consequently, it is safe to say that some East African judges are aligning more with the US approach of comity in recognising and enforcing foreign judgments at common law, while many other common law African countries continue to adopt the theory of obligation.

An issue that was not explicitly directed to the Kenyan Supreme Court was that this was a business and human rights case, and one involving the protection of weaker parties. This may have provoked policy reasons from the Court that would have been very useful in developing the law as it relates business and human rights issues, and protection of employees in cross-border matters.

On a final note, the robust reasoning of their Lordships must be commended in this recent Supreme Court decision, given that it adds significant value to the jurisprudence of recognising and enforcing foreign judgments in the Commonwealth as a whole, in East Africa overall, and particularly in Kenya. The comparative approach adopted in this judgment will also prove to be edifying to anyone with an interest in comparative aspects of the recognition and enforcement of foreign judgments globally.