A Need For a Notary
Key Takeaways:
Recognising the need for a notary is vital in legal and official document verification.
Notaries authenticate signatures, ensuring document validity and preventing fraud.
Utilising notary services adds an extra layer of credibility and legality to various transactions.
If you are planning to travel abroad for work or study purposes, or are getting married you may have come across a few legal terms that you might have you bamboozled. After reading this article, we hope that you will have a better understanding of what a Notary Public (or just a Notary) is, what functions a Notary is responsible for, and what it means to have a document notarised for legal use abroad.
A “Notary” sounds like an important title. Sort of like a Superhero – can you picture it? “The Notary”.
And the reality is, they kind of are…
A Notary is a practicing and admitted attorney that has passed the additional practical examination in respect of the practice, functions and duties of a Notary. This extra examination gives Notaries a further qualification, which bestows on them statutory powers to witness documents and signatures, draw and attest to contracts and statements, authenticate the validity of certain documents, administer oaths, and perform other wide-ranging administrative functions of a national and international nature.
A Notary is basically considered to be held to a higher standard of care than a “run-of-the-mill” attorney. Why? Well, due to the ethical nature of the services which Notaries render and the specialist knowledge required to draft and/or legalise certain documents - the office of a Notary is therefore held in high esteem.
In summary - a Notary specialises in the drafting and legalisation of certain documents that have to be used as official documents abroad or within the Republic of South Africa. When documents have been notarised by a Notary, they are assumed to be complete and legal and are referred to as having been notarised.
Ok, so a Notary is basically an attorney, ”on steroids”.
Let’s talk through this whole process of “notarising” a little more….
Why does a document have to be notarised? Can I not just have it commissioned?
People often confuse having a document notarised and having a document commissioned.
So, what is the difference?
Commissioning requires that the person (known as “the deponent”) who signs the document, be in the attorney’s presence and that they are the same person whose name appears on the document to be commissioned. Therefore, you have to ascertain that the names on the identity document correspond, in its entirety, with the names on the document. The bearer of the identity document should be the same person whose photograph appears in it. A commissioner of oaths is anyone who is authorised to act as such by virtue of their profession or designation (any person appointed as such by the Minister of Justice (Minister) or appointed by any officer of the Department of Justice with the rank of a director authorised in writing by the Minister).
Unlike a commissioner of oaths, an attorney is not automatically authorised to act as a Notary by virtue of their profession or designation. An additional practical examination in respect of the practice, functions and duties of a Notary needs to be completed and passed before an attorney can practice as a Notary. Notarising a document, (which is verifying it to be a true copy of an original document), does not require a client’s presence (although there are some exceptions). The Notary attaches a completed and signed notarial certificate to the front of the copy of the original document, and affixes a seal next to their signature. Documents that are going to be used for international purposes, be it for an individual or company, can only be signed before a Notary.
Take note – if an affidavit or power of attorney is intended for use outside of South Africa or when buying or selling property outside of South Africa, the affidavit, power of attorney or transfer documents (as the case may be) will need to be signed in front of a Notary.
What documents are required to be notarised?
Although there are a wide variety of documents that can be notarised by a Notary, the most common documents include the following -
marriage certificates (copies can be notarised as true copies of the original);
birth certificates (copies can be notarised as true copies of the original);
death certificates (copies can be notarised as true copies of the original);
letters of no impediment / single status certificates (copies can be notarised as true copies of the original);
divorce certificates and decrees of divorce (copies can be notarised as true copies of the original);
police clearance certificates (copies can be notarised as true copies of the original);
powers of attorney (when signed in person in front of the Notary);
copies of Identity Documents;
educational qualification documents (copies can be notarised as true copies of the original), and
in addition, any document that needs to be copied and the copy thereof notarised as a true copy of the original.
What is a notarial deed?
When documents are required (by law) to be notarially executed, we refer to them as notarial deeds. This really boils down to a Notary having to draft the document before it can be signed and witnessed in the presence of the Notary. Notarial deeds include, amongst other things, ante-and-postnuptial contracts, deeds of cession of usufruct, deeds of servitude, notarial leases, trust deeds of donation and notarial bonds. Notarial deeds are kept by the Notary for safekeeping, and all records of these type of documents are registered in the Notary’s protocol as proof to show that the documents have indeed been drafted and attested to before him/her.
Aside from drafting and recording the signing of notarial deeds, a Notary also notes protests regarding a bill of exchange as well as an Apostille and legalisation services, which might include the attestation, authentication, and notarisation of documents that are bound to be used in foreign countries.
Legalising an official document
Legalising documents means that official (public) documents executed within South Africa for use outside of South Africa are affixed, sealed and signed either with an Apostille Certificate (if the destination country is a signatory of the Hague Convention), or with a Certificate of Authentication (if the destination country is not a signatory of the Hague Convention).
Wait, what is the Hague Convention?
The Hague Convention on the Civil Aspects of International Child Abduction or Hague Abduction Convention is a multilateral treaty developed by the Hague Conference on Private International Law that provides an expeditious method to return a child internationally abducted by a parent from one member country to another. South Africa ratified the Convention in 1996 and the Act came into operation on 1 October 1997. The Convention's main object is to enforce rights of custody over a child (ren) who has been wrongfully removed to or kept in a foreign country in breach of those rights and to secure the prompt return of the child(ren) to South Africa.
Where countries are members of the Hague Convention –
the document/s must be signed in the presence of a Notary, or if the document is an original to be notarially certified then the original must be presented to the Notary. The Notary will then attach an authentication certificate to the document, which references the attached document, the authenticity thereof and lastly bears the Notary’s signature, stamp and seal, and
the Notary will send the authenticated document to the High Court in their area of practice and the High Court will attach an Apostille authenticating the Notary’s signature (an Apostille certification refers to the process followed by which the signature and seal on an official (public) document is verified). Thereafter, the document is suitable for use outside South Africa in a country that is a party to The Hague convention.
Where countries are not members of the Hague Convention -
If the country of use is not a member of the Hague Convention, there are two further steps before the documents may be used abroad –
The third step is that once the document has been authenticated by the Notary and apostilled by the High Court, it must then be sent to the legalisation department of DIRCO (Department of Internal Relations and Cooperation) where it will be legalised.
Again, legalisation is the process by which the signature and seal of the High Court is verified.
Finally, the documents are sent to the Embassy or Consulate of the country of use for their final authentication.
The documents are only suitable for use in non-Hague convention countries once the above four steps have been finalised.
It is however important to note that a Notary is not obliged to ensure that the contents of the document they are notarising are correct. They are only obliged to verify the identity of the person who is signing the document.
For example, the following wording usually accompanies the notarisation or attaching of an Apostille
“only certifies the authenticity of the signature and the capacity of the person who has signed the public document, and, where appropriate, the identity of the seal or stamp which the public document bears and not the content for which it was issued”.
Planning to work or study overseas?
The country where you plan to move in order to work or study will specify what documents are to be included in their respective VISA applications. This must be confirmed prior to the VISA application being signed and notarised. This may (depending on where you are going) include an English version and the language version of the country where the document is going to.
For people planning to move to China (for example), there are a number of possible documents that you may require as a South African citizen. We have covered this process in the following article to illustrate the various documents (and their respective processes) that may be required for different VISA applications. Please take note of this to ensure that you submit all the appropriate and required documents for notarising. Again, the Notary will not check whether you have submitted the correct documents.
The processing time from start to finish, will be approximately ten to fifteen working days from the time the original documents are received by the applicant. Remember to factor this in, when starting your application process.
Tip – it may be a good idea to contact the embassy of the country you are going to in order to ascertain what documents you may require prior to starting the application process.
Are there any documents that cannot be notarised?
In instances where the foreign country requires the original document to be legalised for use outside of South Africa then the following documents must be submitted directly to DIRCO to be Apostilled (Hague Convention countries) or Authenticated (non-Hague convention countries) -
The following are examples of official (public) documents, which must be sent directly to DIRCO:
original unabridged or full birth, marriage and/or death certificates (please note the legalisation department cannot legalise abridged certificates) (these documents should preferably not be older than one year);
original (valid) letters of no impediment (marital status) (this document is only valid for 3 (three) months);
original letter confirming an individual’s citizenship status (this document should not be older than a year from the date of issue);
original police clearance certificate signed and stamped by the South African Police Service (SAPS);
original adoption papers signed and stamped by the relevant Presiding Officer / Commissioner of Child Welfare of the Children’s Court (Department of Justice and Constitutional Development) or the Registrar of Adoptions at the Department of Social Development.
Important to note – there are certain original documents which cannot be sent directly to DIRCO. They include degree certificates which must first go to the Department of Higher Education and Training, which will provide a confirmation letter, a stamp and signature on the copy of the degree prior to it being sent through to DIRCO. As well as medical documents which must first go to the Health Professions Council of South Africa (HPCSA), to be verified prior to being sent to DIRCO.
Tip - if you are unsure as to what is required, contact a Notary, such as those at Benaters, who will gladly advise and assist you along the way.
Hopefully the above clears up any confusion between what needs to be notarised and what can be commissioned. We admit, that it can be confusing.
An easy (and simple) guideline.
If your document is for use overseas - seek a Notary.
If your document is for use within the borders of South Africa - seek a commissioner of oaths.
Either way, and whether you require your document to be commissioned, notarised, legalised or even require an Apostille, contact us today for assistance. We look forward to hearing from you and supporting you throughout this journey.
Written by Alicia Koch on behalf of Benaters