Why a Notary? – Part 2
In Part 1 of this article, we looked at the roles and functions of a notary, especially their general duties. In this part, we will look at the work reserved for notaries and a notary’s role in the certification and authentication of documents. One will see the necessity and importance of using a notary. The Deeds Registries Act requires notarial attestation (official certification by a notary) for several types of documents to be registered in the Deeds Office. These include, but are not limited to: 1. Antenuptial contracts; 2. Notarial bonds; 3. Personal servitudes, for example, a usufruct; 4. Praedial servitudes, for example, a right of way; 5. Long-term leases, cessions and subleases as well as cancellation and releases thereof; 6. Cession of exclusive use areas (in terms of the Sectional Titles Act). Notarial functions and document certification The notary, in their capacity as a commissioner of oaths, can authenticate and certify affidavits signed in their presence. The notary can also certify documents as true copies, prepare powers of attorney for use in the Deeds Office, and the preparation of various other non-notarial documents in notarial form for example deeds of donation, trust deeds and wills. Authentication procedures and international requirements Authentication involves a notary confirming the identity of the person signing a document. For documents signed in South Africa to be used abroad, or those signed abroad for use in South Africa, there are specific procedures. Typically, a notary authenticates the signer’s signature. This notary’s signature is then verified by the High Court Registrar, and further by the Department of Justice Secretary. However, these steps can sometimes be bypassed, allowing the Department of Justice to directly authenticate the notary’s signature. Simplifying authentication through the Apostille Convention This authentication process is complex but necessary for legal acceptance of documents in other countries. However, if the foreign country is part of the Hague Convention, the process is simpler. The Apostille Convention, established on 5 October 1961, removes the need for multiple steps. In this case, only the High Court in South Africa needs to authenticate the notary’s signature using a specific template, known as “apostilling” the document. Rule 63 and authentication of foreign documents in South Africa Rule 63 of the High Court specifies how to authenticate documents signed outside South Africa for use within the country. A document from abroad is considered valid in South Africa if authenticated by one of the following: a) The head of the South African diplomatic or consular mission or their authorised delegate. b) A Consul General or the Consul General of the United Kingdom. c) Any authorised government authority in the foreign country responsible for document authentication. d) a notary public whose signature must be authenticated by any of the authorities mentioned in points (a), (b) or (c). e) A notary public in the United Kingdom of Great Britain and Northern Ireland, Rhodesia, Lesotho, Botswana, or Swaziland. Notarial seals and evidential significance The rules state that the person authenticating documents should use their official seal if they have one. If not, they must state this under their signature. In South Africa, notaries aren’t legally required to use a seal (which is typically a rubber or metal stamp with “notary” and the notary’s name on it) on the documents they attest. However, it’s common practice for notaries to use such seals. Notary authentication is highly regarded for proving the authenticity of the signers and the accuracy of the document’s information. Reference list: 1. Act 47/1937 2. Sec 87(1) 3. Sec 61(1) 4. Sec 65(1) 5. Sec 75(1) 6. Sec 77(1) 7. Act 95/1986 Sec 25(1) and Sec 27(1) 8. Van der Merwe FE Notarial Practice 1st Edition p 20 – p 21 9. Van der Merwe FE Notarial Practice 1st Edition p 10 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
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