Which Documents are Commonly Notarised?
Key Takeaway:
The article explains what notarisation is, why it is important, and which documents are commonly notarised in South Africa.
What is a Notary
A Notary is a practicing and admitted attorney that has passed an additional practical examination in respect of the practice, functions and duties of a Notary. This extra examination gives Notaries a further qualification, which bestows upon 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.
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 considered to be held to a higher standard of care than a “run-of-the-mill” attorney.
Therefore, unlike a commissioner of oaths, an attorney is not automatically authorised to act as a Notary by virtue of their profession or designation. The additional practical examination as mentioned above, 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 necessarily require a client’s presence (although there are some exceptions). To accomplish this notarisation, the Notary will attach a completed and signed notarial certificate to the front of the copy of the original document, and affix 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.
Please keep in mind that there are instances where a document that requires notarisation will have to be done in the presence of a Notary - such as in the case of an affidavit or power of attorney that is intended for use outside of South Africa or when buying or selling property outside of South Africa.
Which documents are commonly notarised?
Although there are a wide variety of documents that can (and must) 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 including passports and driver’s licenses;
educational qualification documents including foreign degree certificates and transcripts (copies can be notarised as true copies of the original);
TEFL and TESOL certificates (copies can be notarised as true copies of the original);
Travel consent letters for minors (when signed in person in front of the Notary);
Company incorporation documents and resolutions (copies can be notarised as true copies of the original):
Commercial contracts (copies can be notarised as true copies of the original or can be signed in person in front of the Notary);
Affidavits for use in foreign courts (when signed in person in front of the Notary);
Foreign property transfer documentation (when signed in person in front of the Notary);
Statutory declarations (when signed in person in front of the Notary);
Last Will and Testament and Letters of Executorship (Probate) (copies can be notarised as true copies of the original or officially certified copies can be uplifted from the Master of the High Court); and
in addition, any document that needs to be copied and the copy thereof notarised as a true copy of the original.
Different procedures are followed after the Notary has issued the certificate, depending on the type of document that is being authenticated and the country which it is going to. This is referred to as legalising a document.
Legalising a document 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).
What is the Hague Convention?
According to the HCCH
“The Convention of 5 October 1961 Abolishing the Requirement of Legalisation for Foreign Public Documents (HCCH 1961 Apostille Convention) facilitates the use of public documents abroad. The purpose of the Convention is to abolish the traditional requirement of legalisation, replacing the often long and costly legalisation process with the issuance of a single Apostille certificate by a Competent Authority in the place where the document originates.”
As a general rule, the process is simpler, and faster, for countries that have adopted the Hague Convention, as that country has agreed to adopt a shortened process, only requiring an Apostille certificate. The process for non-Hague Convention countries is a little more complex in that there is an additional requirement of a certificate of Authentication.
Ø Wait, what is an Apostille certificate and when do I need one?
An Apostille certificate simply means that your document that originates in South Africa has been authenticated or legalised by The Legalisation Section at the Department of International relations and Cooperation (DIRCO) or the Registrar of the High Court of South Africa, thereby authenticating the origin of a public document.
Keep in mind that an Apostille only certifies the origin of the public document to which it relates - it certifies the authenticity of the signature or seal of the person or authority that signed or sealed the public document and the capacity in which this was done (usually a Notary Public). It does not however certify the content of the public document(s) to which it relates. Apostilles are not grants of authority and do not give any additional weight to the content of underlying documents. An Apostille may never be used for the recognition of a document in the country where that document was issued, it is only to be used abroad.
An Apostille Certificate is an official government Certificate that authenticates the seal and or signature of the public official or authority such as a notary or registrar issuing the document.
An issued Apostille Certificate confirms that the person signing, sealing or stamping a public document has lawful authority to do so, and the Apostilled document automatically becomes a legal document in countries which are members of the Hague Convention. It does not authenticate or confirm the contents of a document.
Note - it is up to the country where the Apostille is to be used to decide how much weight is to be given to the underlying public document. If you have any doubts, you should ask the intended recipient of your document whether an Apostille is necessary in your particular case.
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. 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 further authenticated 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.
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.
Can a Commissioner of Oaths witness my signature or certify my document for use overseas?
The simple answer is no. Documents that are going to be used for overseas purposes, be it for an individual or company, can only be signed before a notary public. 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. Unlike a Notary, which is required to write an additional exam, a commissioner of oaths is anyone who is authorized 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).
An easy (and simple) guideline between commissioning a document or notarising one –
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.
Are you 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. Please 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.
Should your document require a Notarial Certificate and Apostille, we can complete this process for you within 3 working days.
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.
If you are unsure as to what is required, Contact us, and we will gladly advise and assist you along the way – remember whatever the purpose and wherever you are going, we are excited to help you in your endeavours.