Ex parte Steyn

• Jurisdiction: South Africa
• Judge: Flemming J
• Judgment Date: 14 December 1978
• Hearing Date: 23 November 1978
• Court: Orange Free State Provincial Division

Flemming J:

The applicant is the duly appointed trustee in the estate of C Augusto Moreira whose estate was sequestrated by an order of the High Court of the Kingdom of Lesotho. He seeks recognition of this appointment in order to act in his said capacity in regard to assets of the insolvent which are situated within the Republic of South Africa. The applicant also suggests that such recognition is necessary in order "that all assets of D the insolvent estate be discovered and collected" but he has advanced no facts in support of this contention.

In a report from the office of the Master of this Court, the contention is raised that the Foreign Trustees and Liquidators Recognition Act 1908 of E the Orange River Colony has been repealed by Act 36 of 1976 and that the order sought by applicant accordingly cannot be granted.

In respect of a trustee appointed in Lesotho, the repeal as such brought about no change. If it be assumed that a proclamation of reciprocity as contemplated by s 2 of the said legislation did exist in respect of Basutoland, the Kingdom of Lesotho, which came into being long before the said repeal, was neither a protectorate of the British king nor a dominion F of the British monarch and was accordingly not a "British possession" as contemplated by the 1908 - legislation.

The aforesaid contention by implication assumes that the legal permissibility of the recognition of a foreign trustee, is or was dependent upon the existence of legislative authorization.

G Assuming that in certain cases the "recognition" of a foreign trustee amounts merely to a recognition of the vesting of ownership of assets in the trustee or of the diminished personal status of the insolvent - which might be merely declaratory of the impact of South African principles of private international law - the reported decisions confirm the existence in the common law of a power to recognize a foreign trustee which is not H so narrowly confined and could accordingly be invoked even where the law of the insolvent's domicile provides neither for a divesting of assets nor for a diminution of status. This power finds its basis in the comity of nations (cf R v Etberg 1932 AD 142 at 145) and was invoked prior to the relevant colonial legislation and also subsequent thereto in situations falling beyond the scope of that legislation. Cf Ex parte Francis NO 1933 SWA 11 and the decisions mentioned in Re African Farms Ltd 1906 TS 373 at 374; MTD...