South-African legal opinion

There are issues on which the Israeli courts refer to foreign legal opinions. A South-African legal opinion is referred to in cases involving labor law, real estate law, wills and inheritances, enforcement of foreign judgments, and more, relating to South-African law.

Foreign Expert Legal Opinion – Labor Law

For example, in Choppy Sea Treading Ltd v Sivan Tabachnik (NLA 4372-11-16), the National Labor Court discussed a request to delay the execution of the Tel-Aviv regional court’s judgment accepting the respondents’ claim for work payment and other rights. The request was made by the owner of a small business in South Africa selling goods in kiosks, where the respondents worked.

The regional court had stated that, according to the business-owner’s testament, the respondents did not receive paid vacation days or any payment whatsoever for days during which they did not work. Therefore, it was determined that each of the respondents is entitled to vacation pay, in accordance with the foreign legal opinion given by the South-African law expert on the matter.

In the request filed with the National Labor Court it was argued that the judgment contained various errors justifying its annulment. Among other things, it was argued that the tribunal did not discuss the contention that the foreign legal expert opinion on which the judgment was based was invalid; according to the petitioners, the opinion does not apply to vacation pay for the specific type of work in question, on a percentage basis and given the situation of the respondents.

Judge Leah Glicksman stated that the business owner did not contradict the foreign law expert regarding the 21 days of vacation to which workers are eligible in South Africa, did not submit a counter-opinion, and even admitted to not paying the respondents for the vacation days that they deserved.

After examining all the allegations, it was concluded that there is room for a partial delay in the execution of the judgment.

This case demonstrates the great importance of foreign law in Israeli courts and tribunals and shows that, if no foreign legal counter-opinion is brought before the court, it is not very likely that the allegations will be accepted.

Enforcement of a Foreign Judgment

When a request for enforcement of a foreign judgment is submitted to the court, the court requests the opinion of a foreign law expert on whether the foreign judgment is enforceable in Israel, in accordance with the Foreign Judgments Enforcement Law, 5718-1958 (hereinafter: the Enforcement Law).

In the legal opinion submitted to court, the law expert must examine whether the foreign judgment meets the following conditions of the Enforcement Law (Section 3):

The judgment was given by a foreign court that was authorized to do so by the laws of the foreign country.
The judgment can no longer be appealed.
The charge is enforceable by Israeli law, and the content of the judgment does not contradict public policy.
The judgment is enforceable in the foreign country where it was given.

In originating motion (Tel Aviv) 20092-06/16 , the court ruled that the business owner failed to prove compliance with Section 3(1) of the Enforcement Law (mentioned above) through the Sierra Leone (a West African country) expert legal opinion; that is, it was not proved that the court that gave the judgment in Sierra Leone was authorized to do so according to Sierra Leone law.

The court stated that proving compliance with Section 3(1) is an essential step, which is intended to convince the court in Israel that the foreign court was authorized to give the judgment according to the foreign law. According to the court, the fact that the judgment was given by a foreign court does not automatically render it valid – the foreign law expert must clarify the basis for the foreign court’s authority to give the judgment according to the foreign law.

The court further stated that the foreign legal opinion must meet the minimum expectations from a foreign law expert.

This case demonstrates that the court does not automatically accept any foreign law expert’s opinion; it examines the opinion carefully, as well as the expertise of the ostensible foreign expert.

Therefore, the question arises as to who is considered to be a foreign law expert.

Foreign Law Expert

According to the case of Jacob Berg and Sons (Furniture) Ltd v Berg East Imports Inc (CA 6796/97), PD 54(1) 697, there is no one single definition of who is considered to be a foreign law expert, but it can be said that any lawyer or jurist who deals with the relevant foreign law through practice, academia, or otherwise, may be considered an expert.

The court further stated that a foreign law expert must meet the following conditions set by Prof. Menachem Shawa:

a lawyer or judge who practices, or has practiced in the past, the relevant foreign law system;
a jurist who holds an official position that requires knowledge of the relevant law system;
another person (even if that person is not a jurist) who, due to their profession or occupation, has acquired knowledge of the relevant law system.

Foreign Legal Opinion Concerning Succession

Another area in which foreign legal expert opinions are often used is succession and wills.

Pursuant to Section 136 of the Succession Law, the courts in Israel are authorized to hear cases of succession of any deceased person whose residence on the day of death was in Israel, or who left behind assets in Israel.

Section 137 of the Succession Law sets out the rules of Dépeçage, according to which the inheritance laws that apply are those of the place of residence of the deceased at the time of death, other than certain exceptions set forth in the law.

These clauses are relevant to cases where a foreign resident has passed away, leaving behind assets in Israel: real estate, movable property, bank accounts, and the like.

A petition for probate or succession that is submitted to the Inheritance Registrar will be forwarded in these cases to the Family Affairs Court.

The petitioners will need to submit to the court a foreign expert legal opinion stating the foreign law relating to their case.

The foreign law that applies is the law of the place of residence of the deceased at the time of death. For example, if the deceased’s place of residence at the time of death was South Africa, and the deceased left behind assets in Israel, a legal opinion stating the inheritance laws of South Africa that are relevant to the case will be required.

When it is difficult to determine where the deceased’s place of residence was, the “maximum affiliation” test will be used.

Foreign Legal Opinion – Contacting a Lawyer

In cases where the deceased was a foreign resident, and a foreign legal expert opinion is required, we invite you to contact our office and we will assist you.

Our law firm assists in obtaining foreign legal opinions relating to succession cases.

We also assist in obtaining South African and other foreign legal opinions for cases that are not related to successions and wills. We will be happy to be at your service.