Why a Notary? – Part 1
Clients often ask why certain documentation must be authenticated or certified by a Notary and not by a Commissioner of Oaths. To answer this question, one must know and understand the role and functions of a Notary, also commonly known as a Notary public. A Notary is a public functionary authorised by the High Court to draw and attest contracts and other documents.1 Historically, the function of a Notary can be found in Roman and Roman-Dutch Law. In the latter official recognition was given to the office of a Notary by way of an edict dated 2 March 1524.2 According to FE Van der Merwe, the first Notary was appointed in the Cape in 1672, and from then until 1858 licenses were issued to enable persons to act as notaries.3 In 1903 legislation in the Cape Province prescribed that no person apart from an attorney can be admitted as a Notary.4 This requirement was brought forward in subsequent legislation. The Legal Practitioners Act 28 of 2014 makes a provision that should a person wish to be appointed as a Notary, they have to apply to the High Court for admission.5 The application must indicate that the applicant has been admitted as an attorney; that there is no application to strike them off the roll or suspend them from practice; and that the applicant has passed an examination in respect of the practice, functions, and duties of a Notary. Van der Merwe states that “the office of Notary is a special office which enjoys high regard but is subject to strict norms in respect of the duties involved and the standard of conduct expected of the incumbent of such office. Much emphasis is placed on characteristics such as impartiality, credibility, responsibility, and independence.”6 Elliott quotes the following from the case of Incorporated Law Society of the Transvaal v Kuyper7 where JP Curlewis states: “The office of a Notary is not only one of very great antiquity, but one of the highest importance and responsibility, an office of such responsibility that in most countries in Europe and in this country, the greatest confidence and trust is reposed in any document executed by a Notary.” As was said by Mr. Justice Solomon in the case of Transvaal Land Bank Ltd v The Registrar of Deeds 1907 TS 759 at 764 “the presumption is that every statement contained in a Notarial Deed is true and that all proper solemnities have been observed by the Notary. A Notarial Deed seems to me a document of such great moment that one may almost call it a solemn document; all the solemnities should be observed by the Notary in essence therefore a notarial document, one for example which is executed before the Notary by the parties and signed by the Notary, is accepted as being accurate and trustworthy as to its content.”8 The Deeds Registries Act in turn defines a Notarial Deed as a deed attested by a Notary but does not include a document or signature which is authenticated by a Notary or a certified true copy of a document by the Notary.9 It is incumbent on the Notary to file all Notarial Deeds executed before him in his protocol and note in his protocol register in numerical order the records thereof. Van der Merwe collates the general duties of a Notary as follows: Should be professionally independent in their relationship with their clients; and Should act impartially and in good faith at all times and not seek to promote their own interest; and All information must be preserved with the highest degree of secrecy and is privileged; and Prepare documents with great care and attention; and Must ensure that the parties are identified and have the capacity to execute the deed and must be executed by the parties or their agents in the presence of the Notary; and Should explain the contents of the document to the parties and ensure they understand it; and Ensure all prescribed formalities in respect of a Notarial Deed are timeously complied with.10 In Part 2 of this article, we will look at the work reserved for Notaries and the certification and authentication of documents. Reference list: Elliott The South African Notary 6th Edition pg. 1 Van der Merwe FE Notarial Practice 1st Edition pg. 2 – Act 28 of 2014 Van der Merwe FE Notarial Practice 1st Edition pg. 3 Van der Merwe FE Notarial Practice 1st Edition pg. 4 – Act 11 of 1903(c) Section 24 and Section 26 of the Act Van der Merwe FE Notarial Practice 1st Edition pg. 7 1925 TPD 760 at 764 Elliot South African Notary pg. 10 1925 TPD 760 at 764 Deeds Registries Act 47/37 Section 102 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Does my maiden name automatically change if I get married in South Africa?
Marriage is a significant milestone in one’s life, bringing with it a multitude of changes and decisions. One such decision that often arises is whether to change one’s maiden name after tying the knot. In South Africa, as in many other countries, there are legal and personal considerations to contemplate when it comes to changing or retaining your maiden name. This article will delve into the intricacies of South African marriage laws and the process of changing or retaining your maiden name. South African marriage laws In South Africa, marriage is governed by the Marriage Act of 1961 and the Civil Union Act of 2006. These laws provide the framework for the legal aspects of marriage and dictate the options available for handling your name after marriage. The default option: No automatic name change Unlike some countries where marriage automatically changes a woman’s last name to her husband’s, South African law does not impose such an automatic name change. Upon marriage, your maiden name remains unchanged in the eyes of the law. This means you can continue to use your maiden name for all legal and official purposes if you wish. Electing to change your name If you decide that you want to adopt your spouse’s surname, you can do so through a legal process. This involves obtaining a Marriage Certificate, which is proof of your union, and using it to update your identification documents, such as your ID book, passport, and driver’s license. This process does not happen automatically; you must actively choose to make the change. Combining surnames or creating a new one South African law also allows couples to choose to combine their surnames or create a new surname altogether. This can be a meaningful way to honour both partners’ family names and create a unique identity for your family unit. Personal considerations While South African law provides the framework for changing or retaining your maiden name, the decision is deeply personal. Many factors come into play, including cultural traditions, professional considerations, and personal preferences. Some individuals choose to keep their maiden names for professional recognition or to preserve their identity, while others opt to take their spouse’s surname as a symbol of unity. Getting married in South Africa does not automatically change your maiden name. Instead, it provides you with the freedom to make a choice that best suits your personal circumstances. Whether you choose to retain your maiden name, adopt your spouse’s surname, combine names, or create a new one, the decision is yours to make, guided by both legal and personal considerations. Ultimately, the most important thing is that the choice feels right for you and your partner as you embark on this exciting journey together. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by Succeed Group
The dos and don’ts for landlords regarding the Rental Housing Act
In South Africa, the Rental Housing Act lays out important dos and don’ts for landlords. By adhering to these guidelines, landlords can maintain positive, lawful relationships with tenants, ensuring a fair and transparent renting experience for all parties involved. Landlords play a crucial role in providing safe and comfortable homes for tenants. In South Africa, the Rental Housing Act (“the Act”) provides guidance on the rights and responsibilities of both landlords and tenants. Understanding the provisions of this Act is essential for landlords to maintain a positive and lawful landlord-tenant relationship. Here are some dos and don’ts for landlords based on the Act: Dos: Provide written receipts: The Act requires landlords to provide tenants with written receipts for all payments received. These receipts should include the address, description of the residence, the purpose of payment (e.g., rent, arrears, deposit), and the payment period. Invest tenant deposits: Landlords are required to place tenant deposits in an interest-bearing account with a financial institution. The interest rate must be at least equal to that of a savings account with a financial institution. Inspect the residence with tenants: Before a tenant moves in, conduct a joint inspection of the residence to identify any pre-existing defects or damages. This inspection helps determine the landlord’s responsibility for repairs. Arrange a joint inspection upon lease expiry: Schedule a date and time to do a joint outgoing inspection with your tenants. The agreed appointment should be within three days before the lease ends, to assess any damages that occurred during their occupancy. Return deposits timely: If the tenant has fulfilled all lease obligations, return the deposit and accrued interest within 14 days of the restoration of the property to the landlord. Keep records: Maintain records of costs incurred for repairs or damages. These receipts should be available for the tenant to inspect as proof of expenses deducted from the deposit. Adhere to lease provisions: Ensure that the terms of the lease are followed by both parties and do not waive the standard provisions outlined in the Act. Include required information in lease agreements: In lease agreements, include details such as the names and addresses of both parties, a description of the residence, rental amounts and escalation, deposit information, the lease period, and obligations for both the tenant and landlord. If the parties enter into a verbal lease agreement, the landlord is obliged to reduce it to writing upon request of the tenants. Don’ts: Don’t delay inspections: Neglecting to inspect the residence with the tenant upon lease commencement or termination can be detrimental. It may be viewed as an acknowledgement that the residence is in good condition, which could hinder any future claims. Should the tenant refuse to respond to the landlord’s request to conduct an inspection, the landlord should inspect the property within seven days after the expiration of the lease agreement to assess any damage or loss which occurred during the tenancy. Don’t deduct costs arbitrarily: Deducting costs from the deposit for repairs without evidence can lead to disputes. The Act requires that costs be proven to the tenant. Don’t overcharge: Charging tenants for expenses related to the contract of lease without factual expenditure is prohibited by the Act. Don’t waive standard provisions: The standard provisions in the Act should not be waived by either the landlord or tenant, as these are in place to protect both parties. Don’t ignore house rules: If there are house rules applicable to the residence, provide the tenant with a copy as an annexure to the lease agreement. Don’t delay deposit refunds: Failure to refund deposits and accrued interest within the stipulated timeframe can lead to conflicts with tenants. Don’t leave the lease agreement to expire: If a tenant remains in the residence beyond the lease expiration date with the landlord’s expressed or implied consent, the parties are deemed to have entered into a periodic lease unless a new written lease is established. Either party can give notice of at least one month to the other party to terminate the lease. It may be more secure to enter into a new lease agreement for a fixed period. The Act aims to ensure fairness and transparency in landlord-tenant relationships. By adhering to its provisions, landlords can create a positive renting experience while safeguarding their rights and those of their tenants. Landlords need to familiarise themselves with the Act, uphold their obligations, and respect their tenants’ rights, as outlined in the Act. Ultimately, compliance with the Act is the key to maintaining harmonious and lawful landlord-tenant relationships. Reference list: Rental Housing Act 50 of 1999 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Can a testator disinherit their surviving spouse?
The Maintenance of Surviving Spouses Act 27 of 1990 permits surviving spouses to seek maintenance from the deceased spouse’s estate upon the marriage ending due to death. This claim lasts until the survivor’s death or remarriage and factors in estate value, the survivor’s financial circumstances, marriage duration, living standards, and age. It is widely recognised that testators have the freedom to distribute their assets as they see fit. However, certain laws, grounded in public policy, limit this freedom. While many legislations restrict the freedom of testation, this article will specifically focus on the Maintenance of Surviving Spouses Act 27 of 1990. When a marriage is in community of property, the surviving spouse automatically receives 50% of the joint estate upon the other’s death due to the nature of the marriage. A will cannot change this entitlement. However, such an exclusion in a will might impact any potential maintenance claim by the surviving spouse. In the Hodges vs. Loubrough case, Didcott J observed that the mutual duty of support between spouses, and the consequent maintenance obligations, arise from their matrimonial bond. Once this relationship ends, either by death or divorce, that duty ceases. The Maintenance of Surviving Spouses Act 27 of 1990 (the Act), changed this common law perspective. The Act, effective from 1 July 1990, was introduced to allow surviving spouses a claim for maintenance against the estate of the deceased under certain conditions. According to Section 2(1) of the Act, if a marriage ends due to the death of one spouse after the Act’s commencement, the surviving spouse can claim from the deceased’s estate for their reasonable maintenance. This claim can continue until the surviving spouse’s death or remarriage, provided that the surviving spouse cannot meet these needs through their own earnings. Section 3 of the Act states that in determining the reasonable maintenance needs the following is taken into consideration: -the amount in the deceased estate available for distribution to heirs and legatees; -the existing and expected means, earning capacity, financial needs and obligations of the survivor; -the subsistence of the marriage; -the standard of living of the survivor during the substance of the marriage; and -the survivor’s age at the date of death. It’s evident that if a marriage ends due to the death of one spouse, the duty of support transfers from the deceased spouse to their estate. This is, of course, assuming the estate has the resources to meet this obligation and the surviving spouse cannot cover their own maintenance needs from personal earnings. Therefore, it appears that individuals can choose to leave their spouses out of their wills, provided the surviving spouses can financially sustain themselves. Reference list: -In Hodges v Coubrough NO -Section 2 of Act 27 of 1990 -Section 3 of Act 27 of 1990 While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by Succeed Group