Author: Shelley Orgill
The authentication procedure of conveyancing documents signed outside of South Africa. The process of signing bond and transfer documents outside the borders of South Africa may seem like an unimaginable task however, Rule 63 of the High Court Rules Act and the Hague Convention 5 of 1961 provides for formal rules to be followed in order for documents signed overseas to be used in South Africa. These formal requirements ensure the authentication of documents.
According to Rule 63(1) of the High Court rules the term “documentation” encompasses any deed, affidavit or other writing, power of attorney and contract. However, this rule excludes an affidavit or solemn or attested declaration claiming to have been made before an officer set out by section 8 of the Justice of the Peace and Commissioners of Oaths Act 16 of 1963. Furthermore, the term “authentication” is defined as the verification of any signature when applied to a document.
The formal Authentication procedure may occur in three ways:
- Rule 63 (2) (e) procedure – Notary Public
This procedure is to be followed whereby the country you are signing your documents is not a member state of the said Hague Convention. The conveyancing documents may be signed before a Notary Public where the documents are signed in Swaziland, Zimbabwe, Lesotho, Botswana, United Kingdom of Great Britain and Northern Ireland (England or Ireland).
The Notary Public practicing in the country in question is required to identify the parties, sign the document and attach his/her Certificate of Authentication which must bear the seal of office to the document.
- Convention Procedure
Where both countries are member states to the Hague Convention and conveyancing documents are to be signed by the parties; the documents must be authenticated by a Notary by affixing an Apostille Certificate to same. The Apostille certificate is required to meet formalities as set out in the Hague Convention. Furthermore, the documents, along with the Apostille, must be issued, signed and stamped with the seal of office by a duly appointed authority in that country. In South Africa, the duly appointed authority is the Registrar of the High Court.
- Rule 62 Procedure – Apostille Convention
This procedure is applicable in the instances of signing documents in any foreign country that is not a member state of the Hague Convention.
In order for the document to be adequately authenticated a Certificate of Authentication which bears the signature or seal of office, is required by either:
- The head of a South African diplomatic or consular mission; or
- Consul-general, consul, vice-consul or consular agent of the United Kingdom; or
- Any individual in the administrative or professional division of the public serving at a south African diplomatic, consular or trade office abroad; or
- A government authority of the foreign state charged with the authentication of documents under the law of that country.
Therefore, an example of the above would be signing at the South African embassy in the foreign country. It is of great importance that documents signed outside of the Republic of South Africa are sufficiently authenticated in order to ensure that the documents are legally enforceable and valid for use in South Africa. The country in which you are situated will determine which procedure to follow, to ensure that the transfer or bond documents signed in a foreign country are valid for use in South Africa