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

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