“A notary is a public functionary authorised by the High Court to draw and attest contracts and other documents and to authenticate public acts”.
Elliot and Banwell Page 1 of The South African Notary.
In South Africa, a notary is required to be admitted as an attorney first, ensuring a sound general understanding of the law.
There is a high tradition of honesty and reliability attached to the office of notary and the legislature and courts place special reliance on notarial acts. This means that where it is deemed necessary to invest documents with particular solemnity, it is often laid down that they must be notarially executed. The most common examples of this are Antenuptial Contracts, Sectional Title documents and bonds over movable property, where the rights of persons not parties to the contract may be affected.
Generally, there are three principal activities attended to by notaries:
- Drafting and executing notarial deeds, i.e. the deeds are “attested” by the notary public.
- The authentication of signatures.
- The certification of copies of documents as correct or that they are “true” copies of the original.
Formal documents executed in South Africa for use outside its borders must be authenticated before they will be recognised in the countries where they are used, and the authority of notaries to affect the necessary authentication is almost universally recognised.
If the document is a “public” document however, it must also be Apostilled. The person entitled to Apostille it in terms of Section (1)(2)(c) of the Apostille Act of 1961 is a person in an official capacity or an officer endowed with the power to execute the document by the state.
The Hague Convention Abolishing the Requirement for Legalisation of Foreign Public documents is an International Treaty, the source of the Apostille, drafted by the Hague Conference on Private International Law on 5 October, 1961. This only covers signatories to the Hague Convention, of which South Africa is one. Documents of non-signatory states are governed by slightly different rules.
The Haque Convention dictates how a document can be certified for legal purposes in other signatory states. This certification is called an Apostille where the appointed government official checks the signature and seal on the documents, checking their own records to validate the signature and seal, and attaches their own authorization seal and signature.
In this country all documents relating to Home Affairs, Education etc., e.g. birth certificates, marriage certificates, death certificates, and degree certificates are public documents which are not authenticated by notaries, but by the Department of International Relations and Co-operation (DIRCO) in Pretoria. Education has an added twist in that the relevant certificates must first be obtained from the Educational Institution concerned, then sent to the South African Qualification Authority (SAQA) for verification, whereafter they go to DIRCO. If the original certificate needs to be retained, one first needs to obtain a duplicate original from the issuing institution.
All other documents including powers of attorney, identity documents etc. are authenticated by the notary who attaches his/her own certificate and then sends them to the Registrar of the Hight Court for apostilling.