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.

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

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