Foreign Court Orders

The Constitution of the Republic of South Africa 1996, provides that a decision or order issued by a court binds all persons and state organs; it goes without saying that Chapter 8 of the Constitution makes provision for the organisation and functioning of judicial authority within the territory of the Republic of South Africa.

Deeds registries are sometimes confronted with transactions deriving from the enforcement of foreign court judgements, e.g. cross border insolvencies, foreign trust transactions and foreign divorce orders. In legal theory all states are sovereign and equal; the territorial principle in public international law bars a state from exercising its jurisdiction beyond their borders; Sovereignty dictates that a state may exercise its particular state functions within its own territory.

In Jones v Krok 1995(1) SA 677(A), it was held that a foreign judgment is not directly enforceable within the Republic of South Africa, but constitutes a cause of action.

At common law, a party wishing to have a foreign court judgment enforced in South Africa must apply to a local court for an order of recognition as noted by the Registrar ’s Conference in RCR 34/2007(see below) which deals with liquidation orders granted by foreign courts; and foreign civil judgments may first register the judgment with a local court under the Enforcement of Foreign Civil Judgments Act, 1998 (Act No. 32 of 1998; however, the Act applies to countries outside the Republic which the Minister has for the purposes of this Act designated by notice in the Gazette, comparable to the Cross-Border Insolvency Act 42 of 2000.

RCR 34/2007 Cross Border Insolvency
A Foreign Court has issued a judgment to liquidate a company that owns property in South Africa. A foreign trustee now requests the registrar of deeds to note a liquidation order against the company. Does the registrar of deeds have the power to note such an order to enable a foreign trustee to deal with company’s assets?

The registrar of deeds must decline to note such an order, unless it has been recognised by a South African Court. See Deutsche Bank AG v Moser and Another 1999 (4) SA 216 (C).

Authentication of the copy of the foreign judgment is considered by the court, in similar vein to a will executed outside the country lodged with the Master of the High Court upon reporting of an estate.

If the foreign judgment concerns the establishment of a certain legal status (e.g. divorce,) it is sufficient to seek recognition of that status, however, if the foreign judgment concerns also an order to perform a certain legal transaction (e.g. make a payment, transfer title, appointment as trustee, liquidator, etc.) then recognition of the foreign judgment shall entail leave to enforce.

In RCR 2/2016 (see below), the registrar‘s conference resolved on the practice of accepting foreign divorce orders as a supporting document, evident from legal principles explained above, all foreign court orders must be recognised by a South African Court for enforcement in the republic.

The recognition of a foreign court order is a question of law to be decided by a court and a foreign court order may not be accepted by a registrar of deeds consequent to factual proof by a conveyancer through an affidavit or a certificate.

RCR 2/2016, RCR 28/2003 and RCR 64/2010 – Copies of foreign divorce orders
May the Registrar of Deeds accept a foreign divorce order?

Yes. In terms of regulation 44A of the Deeds Registries Act 47 of 1937, the conveyancer takes responsibility for the correctness of the marital status of the parties to deeds and documents, inter alia, if the validity of the foreign divorce order has been recognised in terms of section 13 of the Divorce Act 70 of 1979.

Therefore, a copy of a foreign divorce order that is compliant with the provisions of Rule 63 of the High Court rules may be accepted.

Nkuba Ngoasheng
Assistant Registrar of Deeds: Johannesburg Deeds Office

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