Author: Abbaas Kamalie
A Power of Attorney is defined as the authority to act on behalf of another person in a specified, legal or financial matter. A written document is signed in which one person (referred to as the “Principal”) appoints and authorises another person (referred to as the “Agent”) to act or perform functions on his behalf.
A Power of Attorney is utilized in various situations, especially when the principal may be temporarily unavailable to sign necessary documents for a transaction or perform a specified action in person. Often, a power of attorney is used when the principal is out of the country, unable to physically sign or is frail. It is important to note that the principal must have the necessary mental capacity (i.e., must be able to appreciate the consequences of his/her actions and must not suffer from any illness that affects mental capacity). Furthermore, a power of attorney should be granted to a person whom the principal trusts.
SPECIAL POWER OF ATTORNEY
A Special Power of Attorney authorises the agent to perform a specific act in a specific transaction on behalf of the principal. A special power of attorney is limited and the agent has no other authority to act on behalf of the principal other than what is assigned to them. Once the specified action is concluded, the power of attorney would cease. A special power of attorney is often used in the transfer of property which will need to specifically and fully describe the immovable property involved. We recommend that whenever clients need to authorise another person to act on their behalf, that they grant a special power of attorney.
GENERAL POWER OF ATTORNEY
A General Power of Attorney is broader in comparison to a special power of attorney whereby it authorises the Agent to perform various actions in multiple transactions specified by and on behalf of the principal. It is advisable to ensure that the general power of attorney stipulates the required actions to be performed by the agent. A general power of attorney is usually
terminated when the principal dies, becomes mentally incapacitated, becomes insolvent or if the principal revokes such power of attorney.
REQUIREMENTS FOR A VALID POWER OF ATTORNEY
- A power of attorney must be in writing whereby it defines the principal, the agent and the actions authorised.
- The person granting the power of attorney must be a major (18 years old) and have mental capacity. The same applies for the person receiving the authority.
- A power of attorney can only be granted with regards to a right or action that the principal already has capacity to carry out.
- The power of attorney must be signed and initialled by the principal in the presence of two competent witnesses who will also sign in their capacity as witnesses.
- If signed outside of South Africa, the proper authentication process will need to be followed to comply with Rule 63 of the High Court Rules.
POWER OF ATTORNEY IN TRANSFERRING A PROPERTY
Should a power of attorney be signed outside of South Africa, it will either need to be signed before a notary or at the South African Embassy dependant on which country the principal is currently in. The same would apply should a client wish to sign transfer documents while outside of South Africa. This can often be considered as impractical, costly and time consuming as the original signed documents will need to be couriered to transferring attorney in South Africa and will also need to comply with the requirements of the Deed Registries Act, 47 of 1937 to be registered successfully. For these reasons, it may be beneficial having a power of attorney in place before leaving the country should you be purchasing or selling a property.
In terms of a transfer of property whereby an agent signs on behalf of the principal, a Special Power of Attorney is not required to be registered in the Deeds Office, however, the originally signed special power of attorney will need to be lodged at the Deeds Office with the transaction by the transferring attorney. With regards to a General Power of Attorney, it depends on the circumstance whether the power of attorney is required to be registered in the Deeds Office. In terms of Section 65(1) of the Deed Registries Act, 47 of 1937, it the general power of attorney is used for multiple transaction involving immovable property, then it should be registered in the Deeds Office. Thereafter, a reference number will be allocated which can be utilized for subsequent property transaction under the said general power of attorney.
Once transfer documents are ready for signature, the purchaser and seller are required to sign them. Should a special power of attorney or general power of attorney be granted in favour of a third party, the agent/third party will be contacted to sign the documents.
It is important to note that any affidavits cannot be signed by the agent. Affidavits relating to the transfer of the immovable property must be signed by the actual person buying or selling the immovable property.
POWER OF ATTORNEY TO PASS TRANSFER
Included in the transfer documents for signature by the seller is another form of special power of attorney, namely, Power of Attorney to Pass Transfer which authorises the transferring
attorney to register the transfer and appear before the Registrar of Deeds on transfer, on behalf of the seller at the Deeds Office.
In terms of the Deed Registries Act 47 of 1937, the power of attorney to pass transfer must be included in the pack of transfer documents lodged at the Deeds Office and may be signed by the agent nominated by the principal, i.e. a person appointed by the registered owner of the property in terms of a Special or General Power of Attorney.