Documentation that has been signed outside of South Africa and allows a seller to transfer his or her property in South Africa must follow certain rules. We call this Authentication. Examples of such documents are Special, General and Powers of Attorney, mortgage documents and various applications that may be required to transfer property or to correct errors in the Deeds Office where the property is registered.
The general rule, as contained in High Court Rule 63, is that the documents alluded to above must be signed by the parties in the presence of either:
- the head of the South African diplomatic/consular mission, or;
- a person in the administrative or professional division of the public service serving as a South African diplomatic consular abroad, and / or;
- any government authority of such foreign country charged with the authentication of documents.
An interesting rider to the above is that a South African citizen can approach the consul-general, consul, vice-consul or consular agent of the United Kingdom in that foreign country to assist. It would be advantageous for the client to first call ahead to check with the Embassy or Consulate as to what documents they need to bring along to the appointment.
An “authentication” certificate, signed by the above person, must be attached to the documents.
It should be noted that, if the documents are signed in Botswana, Lesotho, Great Britain and Northern Ireland (England, Ireland), Swaziland or Zimbabwe, then only a Notary Public needs to sign and attach his or her seal of office.
Member states of the Hague Convention
If your client cannot do the above and if the country is a member state to The Hague Convention of 5 October 1961 (Abolishing the Requirement of Legalisation for Foreign Public Documents), then the documents are to be signed before a Notary Public of that country who will then ensure that the document is thereafter correctly “Apostilled.” Once the Notary has signed and the Apostille certificate is attached, the document can be used in South Africa.
It is of utmost importance that the correct procedure is followed as non-adherence will cause delays should the Deeds Office or Court insist that the documents are re-signed correctly.
It does sometimes happen that the Notary Public does not print the document on A4 paper or sign it in black ink as is required by our Deeds Offices, however the law firm will in such case request the Deeds Office to accept the document as is and they usually do.
Contact ESI Attorneys for all your transfer needs.