R.D.S v S.B.S and Others (19109/2020) [2021] ZAWCHC 218 (2 November 2021)

R.D.S v S.B.S and Others (19109/2020) [2021] ZAWCHC 218 (2 November 2021)

The court held that the mere existence of a pending appeal in Senegal does not preclude recognition of the foreign divorce order under South African law. The principles in Jones v Krok establish that finality is determined by the status of the judgment in the foreign court, not by the pendency of an appeal, unless a stay of execution has been granted. The court found that further evidence is required regarding the jurisdiction of the Senegalese court and the due process afforded to the respondent, particularly in light of the alleged evasion of service and the respondent's appeals. Accordingly, the application for recognition was postponed to allow for supplementary affidavits and further...

Citation
[2021] ZAWCHC 218
Parties
Applicant: R.D.S; Respondent: S.B.S; Respondent: Glynn Marais Incorporated; Respondent: Registrar of Deeds, Cape Town
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
2 November 2021
Case Number
19109/2020
Procedural Posture
Civil Application / Postponement and Directions for Further Affidavits Prior to Recognition Hearing
Outcome
Application for recognition of the Senegalese divorce order postponed; directions issued for further affidavits and heads of argument; condonation for late filing of answering papers granted without costs; costs of the hearing and postponement to stand over for later determination.
Judges
A.G. Binns-Ward
Legal Topics
Recognition of Foreign Divorce, Enforcement of Foreign Judgments, Community of Property, Postponement, Condonation of Late Filing
Family and Children Civil Procedure Recognition of Foreign Divorce Enforcement of Foreign Judgments Community of Property Postponement Condonation of Late Filing

Case Brief

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Parties

R.D.S

Applicant

S.B.S

Respondent

Glynn Marais Incorporated

Respondent

Registrar of Deeds, Cape Town

Respondent

Procedural Posture

Civil Application / Postponement and Directions for Further Affidavits Prior to Recognition Hearing

Legal Issues

  1. 1 Whether the Senegalese divorce order should be recognised and enforced in South Africa.
  2. 2 Whether the pending appeal in Senegal precludes recognition of the foreign judgment.
  3. 3 Whether the respondent was afforded proper notice and due process in the Senegalese proceedings.

Ratio Decidendi

The court held that the mere existence of a pending appeal in Senegal does not preclude recognition of the foreign divorce order under South African law. The principles in Jones v Krok establish that finality is determined by the status of the judgment in the foreign court, not by the pendency of an appeal, unless a stay of execution has been granted. The court found that further evidence is required regarding the jurisdiction of the Senegalese court and the due process afforded to the respondent, particularly in light of the alleged evasion of service and the respondent's appeals. Accordingly, the application for recognition was postponed to allow for supplementary affidavits and further...

Court Disposition

Application for recognition of the Senegalese divorce order postponed; directions issued for further affidavits and heads of argument; condonation for late filing of answering papers granted without costs; costs of the hearing and postponement to stand over for later determination.

Orders

  • The application is postponed for hearing on the opposed motion roll in the Fourth Division on Wednesday, 11 May 2022.
  • The first respondent is granted leave to deliver supplementary answering papers to update the evidence as it has developed since his answering affidavit was delivered.