It is not always possible for a client to sign their transfer and bond documents within South Africa. Certain circumstances necessitate that a client sign documents outside our borders. Definitive rules have been formalised to ensure that documents signed overseas, can be used in South Africa. The country of signature will determine which rules / formalities must be followed.
According to Rule 63(1) of the UNIFORM RULES OF COURT (High Court Rules), the terms “document” and “authentication” are defined as being:
‘document’ means any deed, contract, power of attorney, affidavit or other writing, but does not include an affidavit or solemn or attested declaration purporting to have been made before an officer prescribed by section eight of the Justices of the Peace and Commissioners of Oaths Act, 1963 (Act 16 of 1963);
‘authentication’ means, when applied to a document, the verification of any signature thereon
Rule 68(2) specifies that any document executed in any place outside the Republic shall be deemed to be sufficiently authenticated for the purpose of use in the Republic, if it is duly authenticated at such foreign place by the signature and seal of office “of the said foreign place.
The official procedures can be summarised as falling into one of three categories:
- Notary Public – Rule 63 (2)(e):
Documents signed in the United Kingdom of Great Britain and Northern Ireland or in Zimbabwe, Lesotho, Botswana or Swaziland can be signed (authenticated) in front of a Notary Public;
- Countries not forming part of the Hague Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (“Apostille Convention”)
Rule 63 of the UNIFORM RULES OF COURT (High Court Rules) will apply. The documents can be signed in front of
- the head of the South African diplomatic or consular mission; or
- a person in the administrative or professional division of the public service serving as a South African diplomatic, consular or trade office abroad; or
- any Government authority of such country charged with the authentication of documents under the law of such country; or
- the consul-general; consul; vice-consul or consular agent of the United Kingdom.
An example hereof would be, signing at the South African Embassy, in that foreign country.
- Countries which are parties to the Hague Convention:
Both countries need to be part of the Convention. The Convention aims to simplify the procedure for legalization of documents, to verify their authenticity, in order to be valid internationally.
The required documents must be:
- Signed by the signatories;
- Authenticated, by either placing an Apostille certificate on the document or attaching it thereto;
- The Apostille must be in the form prescribed form – as set out in the Convention and
- be issued and signed by, and bearing the seal of office of, the competent authority of that country.
Who the competent authority is will vary from country to country. A list of competent authorities for each country, can be found on https://www.hcch.net/en/instruments/specialised-sections/apostille as well an example of the prescribed form of the Apostille. A full list of the participating countries can be found on https://www.hcch.net/en/states/hcch-members.
It is advised that the client obtain legal advice, when they require documents to be authenticated. This would avoid unnecessary delays in the conveyancing process, resigning of documents, and to ensure that all the required formalities are adhered to.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)